Sureshwar Thakur, J. - (1.) The plaintiffs/ appellants herein instituted, a suit against the defendants, claiming therein a decree, for possession of land comprised in khasra Nos.691, 692, 693, 694 and 696, measuring 783.39 square meters, situated in village Shamsherpur, Paonta Sahib as well as a decree for damages of Rs.1,80,000/- with costs of the suit. The suit of the plaintiffs stood dismissed by the learned trial Court. The plaintiffs/appellants standing aggrieved by the impugned verdict, hence, concert to assail it, by preferring an appeal therefrom before this Court.
(2.) Briefly stated the facts of the case are that one Amar Nath was the owner of the suit property at village Shamsherpur, Paonta Sahib and also at other places. Sh. Amar Nath was having one son Shri Ram Parkash and a daughter. Sh. Amar Nath executed his last will on 31.3.1984, which was duly registered with Sub Registrar, Dehradun on 3.4.1984, vide which he bequeathed his property in favour of his grand sons Suresh Kumar and Ramesh Kumar, defendant No.2. After the death of Shri Amar Nath, necessary mutation of inheritance was attested in favour of Suresh Kumar and Ramesh Kumar. After the attestation of mutation, both the brothers, namely, Suresh Kumar and Ramesh Kumar started selling the property. Ramesh Kumar, defendant No.2 has appointed Suresh Kumar as his General Power of Attorney and he authorised him to make any alienation by way of sale or otherwise. Ramesh Kumar and Suresh Kumar sold the land comprised in khasra No.221/144/1, measuring 17 biswas, situated in village Shamsherpur, Paonta Sahib through, registered sale deed of 25.4.1987 in favour of Smt. Veena Sharma wife of Suresh Kumar for consideration of Rs.15000/- and also delivered the possession at he spot. Smt. Veena Sharma purchased the property as shown in the sale deed and tatima attached with the sale deed. Defendant No.2, Ramesh Kumar knowing that his brother Suresh Kumar already sold 17 biswas of land in favour of Smt. Veena Sharma, taking undue advantage of non incorporation of the sale deed in the revenue record, procured a gift deed dated 11.11.1987, which was duly registered in the office of Sub Registrar, Paonta Sahib. On the basis of which Suresh Kumar obtained 9 biswas of land from Suresh Kumar. According to the plaintiffs Suresh Kumar and Ramesh Kumar had already sold the entire 17 biswas of land and nothing was left, but he got the gift deed created and registered on 11.11.1987. The gift deed has no value in the eye of law as Suresh Kumar was not in possession of 9 biswas of land, hence, he is not entitled to transfer the same. The plaintiffs have further alleged that the defendant No.2 in collusion with Suresh Kumar committed fraud by executing the gift deed, which is of no consequence. Smt. Veena Sharma died in a motor vehicle accident on 18.11.2000 and the plaintiffs have succeeded to her estate. After death of Veena Sharma, the plaintiffs have come to know about the fraud which the defendant No.2 has committed in collusion with Suresh Kumar. Defendant No.2 executed a sale deed of 16.03.1988 in favour of defendant No.1 for 10 biswas of land for a total consideration of Rs.49,000/- Another sale deed of 17.03.1988 was also executed in respect of remaining 7 biswas of land in favour of one Ayaz Ahmed for total consideration of Rs.20,000/-. According to the plaintiffs, defendant No.1 as well as Ayaz Ahmed were knowing that the land has already been purchased by Smt. Veena Sharma, who was in possession, hence, the subsequent sale deeds in favour of Ayaz Ahmed and defendant No.1 are the result of fraud. Smt. Veena Sharma, who purchased the suit property remained in possession through out. Ayaz Ahmed has released 7 biswas of land in favour of defendant No.1 The plaintiffs have further alleged that defendant No.1 has taken the possession of the suit property and the plaintiffs are not deprived from its profit and they are entitled for damages at the rate of Rs.5000/- per month for the last 3 years and they claimed the damages to the tune of Rs.1,80,000/-. The plaintiffs have further alleged that after the death of Veena Sharma, they inherited her estate and they are entitled to seek relief. Hence, the suit.
(3.) The original defendants contested the suit and filed separate written statements. Defendant No.1 in his written statement taken preliminary objections inter alia, maintainability, bad for non joinder and mis joinder of necessary parties, locus standi, estoppel, collusion inter se plaintiffs and defendant No.2 and that the suit is liable to be dismissed with special costs under Section 35-A of the Code of Civil Procedure and cause of action. On merits, defendant No.1 has admitted the contents of paras No.1 and 2 of the plaint as also admitted the part of para No.3 of the plaint. It is averred that neither defendant No.2 nor Suresh Kumar were the owners in possession of the suit property and thus they are ot entitled to execute the General Power of Attorney. It is further alleged that the sale deed of 24.4.1987 is fictitious which was never acted upon as the property of S/Shri Suresh Kumar and Ramesh Kumar was mortgaged with H.P. Financial Corporation in July, 1977 for a loan of Rs.49,000/-, which they have taken for installing oil mill in the name and style of M/s Bharthari Oil Mills, Shamsherpur. Both Ramesh Kumar and Suresh Kumar, failed to pay the loan installments, as such, the HPFC took over the suit property and auctioned the same, which was pruchased by one Daljeet Kumar of Sehjadpur House, Ambala City, Haryana FOR Rs. One lac. The property was resold by Daljeet Kumar to Suresh Kumar and Ramesh Kumar as per agreement executed. According to defendant No.1, as Suresh Kumar was not having valid title on 26.4.1987, hence, he was not entitled to execute any document in favour of Veena Sharma. He has also denied the raising of any construction of residential house by Smt. Veena Sharma, as is evident from the loan discharge certificate dated 10.03.1987 and other documents executed by Daljeet Kumar on 4.12.1987. Defendant No.1 has denied that the gift deed dated 11.11.1987 is illegal and wrong which was allegedly executed by Suresh Kumar in favour of Ramesh Kumar. They have also denied the succession of Veena Sharma by the plaintiffs. Defendant No.1 has admitted that defendant No.2, has executed the sale deed in favour of Mohd. Ansari, defendant No.1 and another sale deed of 7 biswas executed in favour of Ayaz Ahmed. He has admitted that Ayaz Ahmed has relinquished his rights in the property measuring 7 biswas in favour of defendant No.1, as per release deed dated 31.10.1997. All the plaintiffs including Veena Sharma and defendant No.2 were living in separate premises known as S.K. Steel. The defendant No.1 has purchased the suit property after making necessary inquiries from the Halqua Patwari, who issued the non encumbrance certificate which was duly countersigned by the Tehsildar, Paonta Sahib. The plaintiffs, Veena Sharma, Suresh Kumar and Defendant No.2 at that time did not disclose any alleged defect in the title of S/Shri Suresh Kumar and Ramesh Kumar. He has denied the remaining contents of the plaint and prayed for the dismissal of the suit.;