- (1.) This first appeal under Section 96 of CPC has been filed by the appellant-defendant Sushil Kumar S/o Sohan Lal against the judgment and decree of possession of learned court of Additional District Judge (Fast Track) No.3, Jodhpur dated 15.12.2007 in Civil Suit No.345/2004 (32/1996) {Madan Singh Bhati through purchaser Sajjan Raj Vs. Sushil Kumar & Ors.}.
(2.) Brief facts of the case giving rise to this first appeal are as under:
(3.) The plaintiff- Madan Singh Bhati filed a suit for permanent injunction before the learned Additional Munsif Magistrate No.1, Jodhpur in respect of Plot No.44-A situated at Shantipriya Nagar, Near Chirghar, Jodhpur (measuring 50' x 90'), which was said to have been purchased by one Balbeer Kumar through registered sale deed dated 24.03.1983. A strip of land adjacent to the said plot was also purchased by said Balbeer Kumar by a registered sale deed dated 19.09.1986. The said Balbeer Kumar executed an agreement to sell for a sum of Rs.25,000/- in respect of said plot No.44-A in favour of defendant- Sushil Kumar, which was registered on 14.01.1988. While the said agreement to sell dated 14.01.1988 was subsisting, however, no conveyance deed or sale deed was executed in favour of defendant- Sushil Kumar, the said plot of land was jointly sold by the power of attorney holders of Balbeer Kumar and Sushil himself, namely, Sajjan Raj and Chandra Shekhar respectively vide a registered sale deed dated 02.12.1990 in favour of Madan Singh Bhati for a sum of Rs.50,000/-. The power of attorney executed by the defendant- Sushil Kumar in favour of one Chandra Shekhar, was executed on 12.11.1990, which was registered on 23.11.1990, however, on the sale deed dated 02.12.1990 while both the power of attorney holders executed the sale deed, the said Sushil Kumar Agarwal and his father, namely, Sohan Lal also signed as witnesses. The said Madan Singh Bhati is said to have further sold the plot No.44-A back to Sajjan Raj vide a registered sale deed dated 12.08.1994 for a sum of Rs.70,000/-. On 12.04.1991, after the sale deed dated 02.12.1990 was executed in favour of Madan Singh Bhati, he filed a suit for injunction against Sushil Kumar being Civil Suit No.154/1991 in which as per Commissioner's report dated 19.04.1991, the said Madan Singh Bhati was found to be in possession of the plot of land in question vide Exhibit-5 and on the next date 20.04.1991 itself, the learned trial court granted status quo order. However, it stated that on 26.04.1991, the said Madan Singh Bhati was forcibly dispossessed by Sushil Kumar during the pendency of the said suit and despite of status-quo order. More so, during the pendency of the said suit, the said Madan Singh Bhati executed said sale deed dated 12.08.1994 in favour of Sajjan Raj, who contested the said suit as plaintiff, which has been decreed by the impugned judgment and decree dated 15.12.2007 in his favour. It has also come on record that the defendant- Sushil Kumar filed a suit for specific performance in respect of alleged agreement to sell in his favour dated 14.01.1988, being Civil Suit No.473/1995 against Balbeer Kumar, Madan Singh Bhati and Sajjan Raj, which is pending and another suit No.117/2003 has been filed by the defendant- Sushil Kumar against the defendant- Sajjan Raj and Balbeer Kumar (Madan Singh Bhati not being party therein) to challenge the aforesaid two sale deeds dated 02.12.1990 and 12.08.1994. The said suit was, however, dismissed by the learned trial court on 27.02.2006 and first appeal against the judgment and decree dated 27.02.2006 being Appeal No.15/2006 is said to be pending in the court of learned District Judge, I, Jodhpur.;