RAKESH KUMAR GARG, J. - (1.) PLAINTIFF -respondent No.1 filed the instant suit stating that she was owner in possession of 1/2 share of the land measuring 311 Kanals 12 Marlas, as detailed in the head note of the suit, as per mutation No.1730 sanctioned on 29.04.1963 and she being the owner in joint possession of the said land bequeathed her 1/4th share in favour of defendants No.7 and 8 for which mutation was also entered and that left behind with her 1/4th share of the total land. She further gifted 1/8th share in favour of defendants No.1 to 3 vide mutation No.1801 dated 07.11.1966, and thus, she remained owner in possession of 1/8th share but by fraud her name has been deleted from the ownership column in the revenue record and instead thereof, defendants No.1 to 3 have been shown to be the owners to the extent of 1/4th share, and thereafter, defendants No.1 to 3 have sold 51 Kanals 16 Marlas of land in favour of defendant No.4 through sale deed dated 05.06.1979. They have also got partitioned the land as per mutation No.2094 propounded to be sanctioned on 22.02.1974 at her back, in which she has not been given any share of the land. The plaintiff called upon the defendants to admit her claim of ownership of 1/8th share but to no avail. She came to know of this fraud committed upon her because of the sale deed in favour of defendant No.4 only a month prior to the institution of the present suit, and thus, she instituted the suit in question seeking declaration to the effect that she was owner in joint possession of 1/8th share of the total land measuring 311 Kanals 12 Marlas, as detailed in the suit, and further that the sale deed dated 05.06.1979 executed by defendants No.1 to 3 in favour of defendant No.4 was illegal, null and void and had no effect over her rights; seeking a further injunction against defendants No.1 to 3 from alienating in any manner the suit property on the basis of jamabandi for the year 1969 -70 and onwards for which they have been shown owners of 1/4th share instead of 1/8th share of the suit land.
(2.) THE suit was contested by defendants No.1 and 2, who filed a joint written statement submitting that the plaintiff had actually gifted away her 1/4th share to these defendants for which a mutation was duly entered in her presence and later -on, partition had taken place regarding the whole land in which she participated and did not raise any grievance, and thus, the suit was not maintainable and was barred by limitation and even otherwise they have become owners of the suit property by way of adverse possession. Defendant No.4 also raised the plea of bonafide purchaser for value and without notice. Defendants No.3 and 6 filed a joint written statement and did not contest the suit of the plaintiff. Defendants No.5, 7 and 8 did not put in appearance and were proceeded against ex -parte. In replication, the plaintiff reiterated her averments made in the plaint and refuted the grounds taken by the respondents No.1, 2 and 4. The parties went to trial on the following issues: 1) Whether the plaintiff had bequeathed only 1/4th share of the property to defendants No.7 and 8? OPP 2) Whether the plaintiff had bequeathed 1/8th share of property to defendants No.1 to 3 and is owner of remaining 1/8th share? OPP 3) Whether the defendants No.1 to 3 are the owners of 79 Kanals 1 Marla of land? OPD 1 and 2 4) Whether the suit is barred by limitation? OPD 5) Whether the defendants No.1 and 2 have become owners by adverse possession? OPD 6) Whether the suit for mere declaration is not maintainable? OPD 7) Whether the suit is properly valued? OPP 8) Whether the plaintiff is entitled to the injunction prayed for? OPP 8A) Whether defendant No.4 is bonafide purchaser for value without notice? 9) Relief.
(3.) ISSUE No.1 was decided in favour of defendants No.7 and 8 holding that there is no dispute between the parties with regard to gifting away the suit property to the extent of 1/4th share of the plaintiff in favour of defendants No.7 and 8. However, under issues No.2 and 3, it was held that as per the gift deed Ex.PW3/A and the mutation Ex.P4, the plaintiff -respondent had gifted her property in favour of defendants No.1 and 2 only to the extent of 1/8th share in the suit property. While recording the aforesaid finding, the trial Court further found that even Naurang Singh -defendant No.1 and other witnesses have admitted in their cross -examinations that the plaintiff had gifted the suit land in their favour to the extent of 1/8th share. The trial Court also found that the presumption of truth attached to the entries in the jamabandi for the year 1969 -70 Ex.P2, wherein defendants No.1 to 3 have been shown to be the owners of 1/4th share, has been rebutted and such entry will not affect rights of the plaintiff -respondent. Under issue No.4, it was decided that the suit filed on behalf of the plaintiff -respondent was within limitation, as in this case plaintiff -respondent was in possession of 1/8th share of the land and therefore, entries made in the revenue record for the year 1969 -70 would not make her suit bad for limitation as her rights were clouded only when the sale was effected by defendants No.1 and 2 on 05.06.1979 and thereafter, she had instituted the suit within three years from the date of said sale. The plea of adverse possession taken by the defendant was also declined. It was further held that the suit in the present form was maintainable. No argument was raised on issue No.7. Issue No.8 was also found in favour of the plaintiff -respondent. Under issue No.8A, it was held that defendant No.4 (i.e. the appellant) was not a bonafide purchaser of the suit land. Resultantly, suit of the plaintiff -respondent was decreed holding that she was owner to the extent of 1/8th share of the suit land with a further declaration that mutation of partition bearing No.2094 and the sale in favour of defendant No.4 to the extent of 1/8th share of the plaintiff were bad in law and inoperative against her rights. Further injunction was also issued in favour of the plaintiff -respondent.;