G.S.SANDHAWALIA - (1.) THE present appeal has been filed by the legal representatives of Madu Ram plaintiff no.1 and plaintiff no.3. THE suit filed was for declaration that the plaintiffs were owners in possession of 5 kanals 14 marlas of the land which is 1/3rd share of the total land of 17 kanals 3 marlas situated in village Mirjapur, Tehsil and District Hisar which had been sold to them by defendant no.1 Buti Ram vide registered sale deed dated 8.1.1992.
(2.) THE case of the plaintiffs was that the decree No.948 dated 30.11.1991 passed in the suit titled Buti Ram Vs, Ram Kumar and the mutation sanctioned on the basis of the said decree was illegal, null and void and not binding upon the plaintiffs and the subsequent decree in civil RSA No.3611 of 2007 -2- **** suit no.1982 dated 6.12.1985 by defendant no.2 Ram Kumar in favour of defendants no.4 to 7 regarding 4/15 share is also null and void and not binding on the plaintiffs. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from transferring the suit land in favour of any other person. The plaintiffs pleaded that Buti Ram who was the owner in possession of 1/3rd share of the total land measuring 65 kanals and had sold 5 kanals 14 marlas land out of his 1/3rd share in the land which was 17 kanals 3 marlas in favour of plaintiffs no.1 and 2 and proforma defendant Kishan Lal and Radhey Sham vide sale deed dated 8.1.1992. Later on Radhey Sham vide court decree dated 5.3.1994 had transferred his share in favour of plaintiff no.3 and, therefore, the plaintiffs as well as proforma defendant Kishan Lal had become owner in possession of the suit land. It was claimed that Buti Ram had not transferred the possession of his land along with the house of defendant no.2 and no exchange decree was suffered between him and defendant no.2 who was a clever and cunning person and had filed a suit on behalf of Buti Ram and after making forged signatures of defendant no.1, he had obtained exchange decree dated 30.11.1991 from the Court of the then Senior Sub Judge, Hisar in the suit titled as Buti Ram Vs. Ram Kumar and got the mutation sanctioned on the basis of said decree in his favour and accordingly, the mutation was also challenged being illegal, null and void and being based upon fraud. The allegations were that Buti Ram defendant no.1, had never filed the suit against defendant no.2 and neither signed the plaint, vakalatnama nor given any statement in the Court and the suit had been filed by defendant no.2 on behalf of defendant no.1 to grab his property. Defendants No.1 RSA No.3611 of 2007 -3- **** and 2 had quarreled and defendant no.2 had caused injuries to the sons of defendant no.1 Buti Ram and even a case under Sections 323/325 IPC was registered and the parties were released on bail on 25.11.1991 and, therefore, there was no occasion to suffer exchange decree in favour of defendant no.2 on 30.11.1991. It was further alleged that value of the house of defendant no.2 was less than Rs.20,000/- and the value of the property of defendant no.1 was more than Rs.3 lacs and, therefore, Buti Ram filed a criminal complaint under Sections 420/468/471 IPC against defendant no.2 for preparing forged documents and that Buti Ram had already entered into an agreement to sell in their favour and there was no occasion for him to suffer the exchange decree. Defendant no.2 Ram Kumar had transferred his 4/15 share in favour of defendants No.4 to 7 vide decree dated 6.12.1995 which was not binding upon the plaintiffs having been suffered during the pendency of the present suit as the principle of lis pendence was applicable It was further pleaded that the plaintiffs and proforma defendant were bonafide purchasers for consideration without notice on the basis of registered sale deed dated 8.1.1992 and were in possession over the suit land. Defendants were adamant to dispossess the plaintiffs from the suit property, hence, the suit had been filed.
(3.) THE defendants No.1 to 3 were initially proceeded against exparte and on 20.9.1997 exparte proceedings against defendant no.2 were set aside and an application was moved under Order 1 Rule 10 of the Code of Civil Procedure and defendants No. 4 to 7 were impleaded as party in the suit and the written statement was filed and thereafter, amendment application under Order 6 Rule 17 of the Code of Civil RSA No.3611 of 2007 - Procedure was filed which was allowed on 12.6.1999. Defendant No.5 had expired in the meantime and an application was filed for impleading his legal representatives which was allowed and written statement was filed on behalf of defendants No.4 to 7. THE suit was contested on various grounds and it was pleaded that Buti Ram had filed a civil suit to challenge the decree dated 30.11.1991 and the same was dismissed on 26.9.1994 and that the plaintiffs were neither owners nor in possession of the suit land. It was pleaded that Buti Ram had already transferred his 1/3rd share in the land measuring 65 kanals 14 marlas in favour defendant no.2 Ram Kumar vide court decree dated 30.11.1991 in the suit instituted by Buti Ram and mutation was also entered into on 7.12.1991 in favour of Ram Kumar, defendant no.2 on the basis of said exchange decree and accordingly, at the time of registration of sale deed dated 8.1.1992 Buti Ram was not the owner of the suit land and could not transfer the land in favour of the plaintiffs and proforma defendant. It was averred that after the said decree Buti Ram had conspired with the plaintiffs and proforma defendant and they came before the Sub Registrar, Hisar to get a fictitious and fabricated sale deed of the suit land and once this fact came to the knowledge of defendant no.2 Ram Kumar, he had come present before the Sub Registrar and filed an application on 7.1.1992 in the presence of the plaintiffs that Buti Ram was not the owner of the land and fictitious sale deed was being executed and in spite of the fact that there was a decree in favour of Ram Kumar and mutation No.388, the plaintiffs got the sale deed registered from Buti Ram who was not the owner of the suit land at that time. It was further pleaded that plaintiffs prevailed upon defendant no.1 and got filed a suit bearing No.816 of 1992 titled Buti Ram Vs. Ram Kumar RSA No.3611 of 2007 -5- **** regarding 1/3rd share and the said suit was dismissed on 26.9.1994. THE factum of quarrel between defendants no.1 and 2 was denied and it was also denied that the value of the house was less than Rs.20,000/-. It was pleaded that both the properties were of equal and same value and Buti Ram under the influence of plaintiffs had filed a false complaint under Sections 420/468/471 IPC and the said case was decided in favour of defendants No.2, who was discharged and acquitted. THE factum of agreement to sell to the plaintiffs before passing of the exchange decree was also denied and the alleged agreement was collusive and was not binding upon the defendants. THE decree dated 6.12.1995 was suffered by defendant no.2 Ram Kumar in favour of defendants No.4 to 7 as per family settlement. It was further denied that the plaintiffs and proforma defendant are owners in possession and bonafide purchasers for consideration without notice. It was pleaded that Buti Ram was not the owner of the suit land but despite that the plaintiffs had got registered the sale deed in their favour from defendant no.1 Buti Ram and they had knowledge of the decree dated 30.11.1991 and the mutation in pursuance of the same.;