- (1.) Plaintiff/appellant is in second appeal against the concurrent findings returned by both the courts below, whereby his suit for declaration and permanent injunction filed against the defendants has been partly allowed by the learned Civil Judge(Junior Division), Rohtak vide its judgment and decree dated 07.09.2007 and in pursuance thereof two appeals were preferred i.e. one by the plaintiff and the other by the defendants and in the said appeals, findings of the learned trial Court have been affirmed by learned Additional District Judge, Fast Track Court, Rohtak vide its judgment and decree dated 20.07.2011 and thereby both the appeals were dismissed.
(2.) Brief facts for proper adjudication of the case are that plaintiff alleges himself to be an old man of 70 years who is an agriculturist of Gurgaon district. As per his case, he is owner in possession of half share of agricultural land as mentioned in the plaint, out of which the physical possession of 63 kanals 5 marals of land was delivered by Smt. Chango through sale deed dated 21.07.1989. Consequently mutation was sanctioned in the name of the plaintiff since the time of purchase i.e. 20.07.1989. It was averred that the plaintiff entered into agreement with Smt. Chango, daughter of Harphool Singh(sister of defendant no.1-Daya Nand) and paid Rs.1 lac as earnest money on 12.7.1989 and Rs.2,15,000/- on 21.7.1989 and got the sale deed executed on 21.7.1989. However, defendant no.1 and his sister Kaali and Chango started interfering in the cultivating possession of the suit land of the plaintiff and therefore he had to file the suit for permanent injunction which was decreed by the Court of Additional Civil Judge, Rohtak in civil suit no.480 of 1991 decided on 5.7.1997. It was further submitted that after the execution of the sale deed in favour of the plaintiff, defendant no.1 in collusion with his sister Kaali and Chango filed a suit for declaration vide civil suit no.417 of 25.9.1987 which was decreed ex-parte by the court of learned ASSJ, Rohtak vide judgment and decree dated 27.08.1990 and earlier the judgment and decree dated 25.02.1985 suffered by him(Daya Nand) in favour of Kaali & Chango was declared null and void. Thus it was stated that the judgment and decree dated 27.08.1990 is not binding upon the right, title or interest of the plaintiff-Dalip Singh. It was further averred that defendant no.2-Sardar Singh purchased 16 Kanals 17 marlas from defendant no.1 vide sale deed dated 12.7.1991 for Rs.1,15,500/-. Another sale deed in favour of defendant no.3-Dharambir, who is son of Dalip was executed by defendant no.1. Both these vendees had purchased suit property from defendant no.1, although defendant no.1 was not the owner of the suit property still he alienated these to other defendants. Finally, it was submitted that the mutations in pursuance to aforementioned sale deeds were sanctioned in favour of defendant nos.2 & 3. However, they do not create any legal right in favour of the defendant nos.2 & 3 and, therefore, the said mutations be declared null and void. Upon notice, defendant nos.1 to 3 filed joint written statement whereby it was admitted that the suit property was also owned and possessed by Daya Nand, defendant no.1 and his sisters Kaali and Chango daughters of Harphool. It was alleged that Ram Rattan son of Kanhiya had fraudulently and illegaly procured the judgment and decree dated 25.02.1985 from the Civil Court, Rohtak and, therefore, defendant no.1 was constrained to file a civil suit against Kaali, Chango and Rattan and the same was decreed by the Additional Senior Sub Judge, Rohtak vide judgment and decree dated 27.08.1990. It was further averred by the defendants that plaintiff is not the owner in possession of the suit property and the judgment and decree dated 25.02.1985 passed in that suit was bad in the eyes of law on account of impersonation. The mutations were averred to have been rightly sanctioned in favour of defendant nos.2 & 3 and, therefore, ultimately the prayer was made for dismissal of the suit. From the pleadings of the parties issues were framed. Both sides led their evidence in support of their respective claims and after appreciating their evidence learned trial Court partly decreed the suit vide its judgment and decree dated 07.09.2007 and the findings thereof have been affirmed in appeal by learned lower Appellate Court vide its judgment and decree dated 20.07.2011.
(3.) I have heard learned Counsel for the appellant and have gone through the case file very carefully with his able assistance. Learned Counsel for the appellant has argued that the courts below have wrongly decided issue nos.1 to 4 against the appellant and wrongly held the judgment and decree dated 25.02.1985 as not binding upon the respondents and further have wrongly interpreted Section 52 of the Transfer of Property Act and, therefore, the findings returned by both the courts below are liable to be set aside.;