- (1.) The present regular second appeal has been preferred against the judgment and decree dated 16.03.2015 passed by learned Additional District Judge, Gurgaon, vide which the appeal preferred by the appellants-plaintiffs against the judgment and decree dated 30.04.2014, passed by learned Civil Judge (Junior Division), Gurgaon was dismissed.
(2.) As per the case of the plaintiffs-appellants, they are the son and daughter, respectively of alienor Suresh Chand Gupta. They claimed themselves to be descendents of Suresh Chand Gupta. Said Suresh Chand Gupta has alienated the shop comprised in rectangle No.508/2 Min measuring 16.88 square yards (162 square feet) comprising in Khasra No.13426/4246/1767, 13428/4246/1767 situated at Gurgaon Mehrauli Road, Gurgaon, vide registered sale deed dated 17.10.2008. The appellants-plaintiffs pleaded that the said sale deed executed by their father in favour of the defendant is illegal, null & void. The shop in question was ancestral and co-parcenary property of plaintiffs. The same has been alienated at ostensible price, without any legal necessity. Hence, they filed the suit for grant of decree for declaration for setting aside the impugned sale deed being illegal, null & void for want of legal necessity. In the consequential relief, they sought decree for permanent injunction restraining the defendants from interfering, alienating or creating any sort of encumbrances over the shop in dispute and he be restrained from interfering in the peaceful possession of the plaintiff thereupon.
(3.) The defendant contested the suit on the grounds inter alia that the shop in dispute was not the co-parcenary and ancestral property. The alienor had legal necessity to sell the shop in dispute as he was indebted to Gurgaon District Primary and Rural Development Bank Ltd. Branch Gurgaon from which he had obtained a loan and on the very next day of execution of the sale deed, he has deposited a sum of Rs.2,86,875/- in his personal loan account on 18.10.2008 and a sum of Rs.2,96,765/- in the loan account of his son Jitender. It was further pleaded that after receiving the sale consideration, the physical possession of the shop in dispute was delivered to the defendant. The factum of existence of the joint Hindu family was also refutted. The defendant-respondent also raised certain legal and preliminary objections. From the pleadings of the parties, the following issues were framed by the learned trial court vide order dated 05.03.2013:- 1. Whether the plaintiffs are entitled to a decree for declaration with consequential relief of permanent injunction as prayed for OPP 2. Whether the suit of the plaintiff is not maintainable OPD 3. Whether the plaintiff has concealed the true and material facts from this court OPD 4. Whether the plaintiff has no cause of action and no locus standi to file the present suit OPD 5. Whether the plaintiff is stopped from filing the present suit by their own act, conduct, acquiescence, latches, omission and commission etc OPD 6. Relief.;