Paramjit Singh Patwalia, J. - (1.) THIS regular second appeal filed by plaintiff is directed against the judgment and decree dated 07.10.2011 passed by learned Additional District Judge, Kurukshetra, whereby the appeal preferred by respondent/defendant No. 2 has been accepted, judgment and decree dated 22.12.2009 passed by learned Civil Judge (Junior Division), Pehowa, has been set aside and suit for declaration with possession and permanent injunction as consequential relief filed by appellant/plaintiff has been dismissed.
(2.) FOR convenience sake, reference to parties is being made as per their status in the civil suit. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that land measuring 1 bigha 6 biswas (2 kanal 3 marlas) being 26/306 share out of total land measuring 15 bighas 6 biswas comprised in khewat No. 99, khasra No. 498, 500, 501, 504, 505, total kittas 5, situated within the revenue estate of village Lohar Majra, Tehsil Pehowa, District Kurukshetra, vide jamabandi for the year 2000 -2001 and vide registered sale deed No. 1527 dated 27.06.2005 was earlier owned by Tidu, the great grandfather of plaintiff, along with others. The suit land is joint Hindu Family Ancestral Property and the plaintiff is the coparcener in the same and has a right in the suit property by birth. Defendant No. 1, father of the plaintiff, being a person of bad habits, sold the above mentioned land to defendant No. 2 for a consideration of Rs. 78,000/ - on 27.06.2005. The land in question is a better portion of the land and its value is not less than Rs. 2 lacs. Defendant No. 2 is threatening to alienate the suit property further to some stranger, which can cause irreparable loss and injury to the plaintiff. It is further averred that an oral family settlement was entered into between the plaintiff and defendant No. 1 whereunder defendant No. 1 assured to transfer the share of plaintiff in his name but he failed to do so. As a result of it, a suit for declaration and permanent injunction was filed by the plaintiff against defendant No. 1 and another, which was dismissed in default. It is averred that sale deed is illegal, null and void and not binding on the rights of the plaintiff. Hence, the suit in question was filed.
(3.) UPON notice defendants appeared and filed separate written statements taking various preliminary objections. On merits it was averred that suit land is not Joint Hindu Family Ancestral property and the plaintiff has no concern with the suit land rather at the time of sale deed, defendant No. 1 was the owner of the suit land and the sale deed is genuine one. It was averred by defendant No. 2 that father of the plaintiff was a spendthrift and indulged in so many bad vices and the suit in question has been filed just to harass the defendants. Defendant No. 1 sold the land measuring 2 kanals 13 marlas with free consent to defendant No. 2 in the presence of the witnesses. No family settlement had ever taken place between the plaintiff and defendant No. 1. It is further averred that defendant No. 1 was fully competent to execute the sale deed. All other averments made in the plaint were denied and prayer for dismissal of suit was made.;