MAHESH GROVER,J - (1.) DEFENDANT -Jai Narain has filed the present Regular Second Appeal challenging the judgment and decree dated 19.9.1989 of the Additional District Judge, Gurgaon (hereinafter described as 'the lower Appellate Court') by which the findings recorded in the judgment and decree dated 17.8.1988 of the Sub-Judge Ist Class, Gurgaon (hereinafter referred to as 'the trial Court') were reversed.
(2.) THE facts of the case are that one Kishori Lal, father of the plaintiff- respondent No. 2 and husband of defendant-respondent No. 1 was owner in possession of house No. 365/5, situated in Jacobpura, Gurgaon as depicted in the site plan, Exhibit P1. Kishori Lal died in the year 1973 and the respondents came to be owners in possession of the said house. It was pleaded that the respondents are governed by the Hindu Succession Act and the house in question devolved upon them in equal shares entitling each to be owners to the extent of 1/2 share. It was further pleaded that respondent No. 2 is residing with respondent No. 1 in the same house. Respondent No. 1 - Smt. Saraswati Devi is an illiterate lady and the appellant by playing fraud upon her got an agreement to sell executed in his favour in respect of the suit house. Respondent No. 1 could not have entered into any agreement to sell in excess of her half share of the suit property. Further, that on the basis of the aforesaid agreement to sell, the appellant filed a suit for specific performance which was decreed in his favour on 26.11.1985 and he was persisting with the execution of the sale deed through Court. The said decree dated 26.11.1985 was also assailed as being illegal and not binding upon the rights of respondent No. 2.
(3.) ON the strength of the afore-stated pleadings, respondent No. 2 prayed for a decree of declaration to the effect that she was owner in possession as co- sharer to the extent of 1/2 share of the suit property and the decree in the suit titled "Jai Narain v. Smt. Sarsawati Devi" decided on 26.11.1985 is illegal, void and not binding upon her.;