- (1.) CM No.135 -C of 2011 After hearing learned counsel for the appellant, delay of 35 days in re -filing the appeal is condoned.
(2.) THE application stands disposed of. RSA No.40 of 2011 This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby his suit for declaration with consequential relief of permanent injunction was dismissed.
(3.) IN the instant suit, the appellant sought a decree for declaration to the effect that the impugned decree dated 22.07.1988 passed in Civil Suit No.439/88 and sale deed dated 28.01.1998 were null, void, illegal and not binding upon the rights of the plaintiff with regard to the property as detailed in the plaint and further prayed for issuance of a decree for permanent injunction as a consequential relief restraining defendants No.1, 4 and 5 not to alienate the property in dispute and further restraining them from interfering or dispossessing the plaintiff from the suit property in any manner. As per the pleadings, one Dhani Ram son of Gokal resident of village Kheri Mann Singh was the owner of the suit property. Defendant No.1 -Sushila Devi got a decree dated 22.07.1988 passed in her favour by adopting fraudulent means and also got sanctioned mutation No.1394 in her favour on the basis of the impugned decree. Said Dhani Ram died on 18.12.1997. The plaintiff and defendants No.2 and 3 are related to said Dhani Ram as the plaintiff is the grandson of Manbhari, sister of Dhani Ram, whereas defendants No.2 and 3 are the sons of said Manbhari. Dhani Ram was aged about 100 years and was hard of hearing. His eye -sight was also weak and he was also not in a position to protect his interests on his person and property. Due to his old age, his property was being managed by the plaintiff and defendants No.2 and 3 and after his death, they were in possession of the suit property as fully detailed above. It was further pleaded that some notorious person of village Kheri Mann Singh brought a girl i.e. Sushila Devi -defendant No.1 and got a fraudulent decree passed in her favour for declaration in Civil Suit No.439/88. The said decree was a nullity in the eyes of law as Dhani Ram was of unsound mind and before passing the decree in question, no Guardian was ever appointed to watch the interests of said Dhani Ram. Moreover, defendant No.1 was not his married wife and the decree was obtained by fraudulent means. Not only this, the said decree required registration and thus, the same is liable to be set aside. Moreover, the said decree was obtained under suspicious circumstances and plaintiff has come to know about the decree after the death of Dhani Ram when he enquired from the Halka Patwari regarding the ownership of the property of deceased Dhani Ram. It was further averred in the plaint that defendant No.1 had sold some portion of the property in dispute vide registered sale deed dated 28.01.1998 in favour of defendants No.4 and 5, however, the plaintiff was still in possession of the suit property and defendants No.4 and 5 were trying to take forcible possession thereof. The aforesaid defendants were requested several times not to interfere in his peaceful possession and to treat the impugned sale deed as illegal and void but they did not pay any heed to his requests and threatened to alienate the suit property and thus, necessity arose to file the instant suit.;