- (1.) The present appeal has been filed by the defendant-appellant, Set No.10 who is aggrieved against the concurrent findings of the Courts below wherein the suit for declaration of the plaintiff-respondents as owners in possession of 1 bigha 7 biswa of land has been decreed, in pursuance of the registered sale deed dated 27.11.1963 and an injunction has been granted against the defendant-respondents from alienating or creating any charge over the suit property and from interfering in the possession of the plaintiff-appellant and defendant -Set No.3. The appeal filed by the defendant-Set No.10 was dismissed by the lower appellate Court.
(2.) Brief facts of the case are that the plaintiff filed a suit that they are owners in possession along with defendant-Set No.3 to the extent of 1/5 th share falling in khasra No.797//1/7min khewat and khata No.1/1 min as per Jamabandi of the year 1988-89 at present khewat and khata No.20/64 as per Jamabandi of the year 1994-95 in pursuance of the sale deed No.788 dated 27.11.1963/02.12.1963 executed by Richpal Singh in favour of Bichamal of whom the plaintiffs and defendant-Set No.3 are legal heirs and defendant, Set No.1 & 2 had no share with the share of the plaintiff and defendant-Set No.3. The compromise (Exhibit 'C-1') dated 07.05.1998 in civil suit titled Jaswinder Singh etc. Vs. Smt.Mohinder Kaur etc.as regards 1/5 th share being illegal, null and void and based upon fraud and misrepresentation having been executed in the absence of plaintiffs and defendants-Set No.3 and a mere paper transaction, is liable to be set aside with the consequential relief of permanent injunction restraining the defendant Nos.9 to 11 from alienating the suit land or creating any charge thereon in pursuance of compromise (Exhibit C-1) or interfering in the possession of plaintiff and defendant-Set No.3 over the suit land. As per the plaint, Richpal Singh son of Gurnam Singh had sold land measuring 1 bigha 7 biswa in favour of Bichamal on 27.11.1963. After consultation, the aforesaid khasra No.797 was converted into 117 khewat and khata No.8/31 as per Jamabandi of the year 1964-65 and Bichamal had remained owner of the suit land and died about 13 years back and the plaintiffs and defendantSet No.3 are his legal heirs in possession of 1/5 th share of the land. Richpal Singh, vendor has since expired, and therefore, his legal heirs had been impleaded as party. The residents of the area filed a suit for declaration titled Moman etc. Vs. Richpal Singh etc. pertaining to khasra No.797 seeking declaration that the suit land is owned by entire village community and is land of well. The suit was dismissed on 28.05.1965 and the appeal against it was also dismissed on 01.03.1966. In the said litigation, the sale deed No.788 dated 27.11.1963 was challenged and was admitted to be correct and Bichamal was held to be owner in possession of the land. The defendants-Set No.1 had filed a suit against defendants-Set No.2, seeking permanent injunction as regards land measuring 790 kanals 2 marlas situated in Dhabi Tek Singh, Tehsil Narwana and by virtue of civil suit No.124 of 01.02.1992, titled Jaswinder Singh Vs. Smt.Mohinder Kaur etc. filed in the Court of Addl.Civil Judge(Senior Division), Narwana, a compromise between defendants-Set No.1 & 2 dated 07.05.1998(Exhibit 'C-1') was produced wherein the plaintiff and defendants-Set No.3 were not present. In the said suit, the land which was shown to be owned and possessed by the plaintiffs and defendants-Set No.3 were shown to be owned and possessed by defendants No.1 to 11 whereas, defendants-Set No.1 & 2 had no concern with one-fifth share of the land of plaintiffs and defendants-Set No.3. Therefore, the said compromise was illegal, null and void and a paper transaction. Defendants-Set No.1 & 2 never remained in possession of the suit land and neither they were owner of the suit land and had no legal right to effect the compromise dated 07.05.1998. The said defendants were in knowledge of the sale deed in favour of the plaintiff and defendants-Set No.3, and thus, the compromise on the basis of which they were trying to alienate the land and got mutation sanctioned in their favour was illegal, and therefore, the defendants needed to file the suit.
(3.) The suit was resisted by defendants-Set No.1 on the ground that Richpal Singh had no legal right to get the sale deed executed because there were three co-sharers of the khewat who were legal heirs of Gurnam Singh, including defendants-Set No.1 & 2, and therefore, the sale deed was null and void. The position of Bichamal as owner in possession of the suit land was denied and the compromise dated 07.05.1998 was a valid and legal compromise and there was no necessity of joining the plaintiffs and defendants-Set No.3 as a party in the earlier proceedings in the Court of Addl.Civil Judge(Senior Division), Narwana, as they had no right in the suit land. Similarly, the suit was resisted on behalf of defendants No.4 to 7 wherein they pleaded that no partition was effected as per compromise dated 07.05.1998, whereas the suit was contested on behalf of defendants No.9 & 10 being was time barred, mala fide and collusive between defendants No.4 to 8 and Richpal had no legal right to sell 1 bigha 7 biswa land to Bichamal and the same was a collusive and bogus sale deed. It was also averred that the plaintiffs and defendants-Set No.3 and their faher, Bichamal had never claimed their right in the suit land on the basis of the sale deed and the suit land was in their possession and they had no legal right to challenge the compromise dated 07.05.1998. Defendants No.9 & 10 claimed to be in hostile position since 17.10.1982.;