Birendra Singh Yadav, J. - (1.) THE facts giving rise to this Second Appeal are that the house in dispute situated at Rohtak was sold by Kundan Lal Defendant No 5 to Defendant Nos. 1 to 4 by means of a registered sale deed (Copy Exhibit D. 8) dated 28th March, 1958. On the same day Kundan Lal executed rent note (Copy Exhibit D. 9) in favour of the vendees. Thus Kundan Lal continued in possession of the house in dispute as a tenant under the vendees. The vendees filed an ejectment application against Kundan Lal which was dismissed on 25th May, 1965 by the Rent Controller. They filed an appeal but the Appellate Authority also dismissed the same on 10th March, 1967. The vendees i.e. Defendant Nos. 1. to 4 filed Revision Petition in this Court which was accepted on 10th April, 1969 vide order, copy Exhibit D.10 and ejectment order was passed against Kundan Lal to whom two months' time was allowed to vacate the demised premises. The Plaintiffs filed the instant suit on 2nd June, 1969. The Plaintiff Nos. 1 to 5 are the sons of Kundan Lal while Plaintiff No. 6 Smt. Maina Wati is his wife. According to the plaint allegations, the house in dispute was joint Hindu family property of Plaintiff Nos. 1 to 5 and Kundan Lal Defendant No. 5 as it was purchased from the income of the Joint Hindu family consisting of the above persons. Kundan Lal had no right under Hindu Law to sell away the house without consideration and legal necessity. The sale in question was effected without consideration and legal necessity. They i.e. Plaintiff Nos. 1 to 5 were residing in the house as owners. The Plaintiffs claimed the following two reliefs: - (a) a declaration that Plaintiff Nos. 1 to 5 were in possession of the house in dispute as its owners that Plaintiff No. 6 was entitled to reside in the house during her life -time and that the order of eviction obtained by Defendant Nos. 1 to 4 against Defendant No. 5, was not binding on the Plaintiffs, and (b) a permanent injunction restraining the Defendants Nos. 1 to 4 from interfering with or obstructing the possession of the plaintiffs over the house in dispute.
(2.) THE suit was contested by Defendant Nos. 1 to 4. They denied the allegations that the house in dispute was a joint Hindu family property of Plaintiff Nos. 1 to 5 and Defendant No, 5 or that they formed joint Hindu family. They pleaded that sale had taken place for consideration and legal necessity. The sale was affected by Kundan Lal to discharge antecedent debts amounting to Rs. 20,200/ - due to Defendant Nos. 1 to 4 and that Rs. 7,000/ - were paid in cash to him before the Sub Registrar at the time of the registration of the sale deed. They were in possession of the house through the tenant (i. e. Defendant No. 5) against whom they had obtained an order of eviction. Some other pleas were also raised as will be clear from the following issues framed by the learned trial Court. 1. Whether the house in dispute is a coparcenary property ? 2. Whether the impugned sale was effected for consideration and legal necessity ? 3 If issue No. 2 is proved, whether the sale is not binding on the Plaintiffs ? 4. Whether the suit is within time ? 5. Whether the suit is collusive ? 6. Whether Smt. Mainawati has a right of residence in the house in dispute and is not bond by the sale ? 7. Whether the Plaintiffs will have to refund the sale consideration to the vendees in case of the suit being decreed against them ? 8. Relief. That court discussed issue Nos. 1 to 3 together and held that the Plaintiffs had failed to prove that the house in dispute was a coparcenary property of the Plaintiffs and Defendant No. 5 and that the impugned sale was for consideration and legal necessity. Under issue No. 4 it was held that the suit was within limitation. Under issue No. 5 it was held that the suit had not been filed in collusion with Kundan Lal, Defendant No. 5. Under issue No. 6 it was held that Smt. Mainawati had no right of residence in the house. Issue No. 7 was found against the contesting Defendants. As a result of the findings under issue Nos. 1 to 3, the Plaintiffs' suit was dismissed.
(3.) FEELING aggrieved, the Plaintiffs filed an appeal which was heard by learned Senior Subordinate Judge (with Enhanced Appellate Powers), Rohtak. Before him the findings on issue Nos. 1, 2 and 3 were challenged on behalf of the Plaintiffs while the findings rendered by the trial court under issue No. 4 was challenged on behalf of the contesting defendants. He held that though Plaintiff Nos. 1 to 5 and Kundan Lal formed a joint Hindu family but there was no evidence to show that the house in dispute was purchased by Kundan Lal from the joint family funds, it was also held that the antecendent debt had not been established nor the legal necessity for Rs. 7000/ - had been proved. Finding on issue No. 4 was confirmed though on different grounds. As a result of the finding under issue No. 1 the appeal was dismissed. The Plaintiffs have now come to this Court in Second Appeal. Before me only issue No. 1 was argued and, therefore, I will discuss that issue only.;