- (1.) The plaintiff-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 24.4.2008 passed by the Additional District Judge, Kekri (District Ajmer) in Civil Regular Appeal No.2/2006 whereby the learned appellate Court by allowing the appeal filed by the defendant-respondent-Shri Chandra Prakash set aside and reversed the judgment and decree dated 1.4.2006 passed by the trial Court i.e. Civil Judge (Senior Division) Kekri (District Ajmer) in Civil Suit No.3/1995 whereby and whereunder the learned trial Court decreed the suit filed by the plaintiff-appellant for declaration and permanent injunction.
(2.) Brief relevant facts for the disposal of this appeal are that the appellant filed a suit for declaration, cancellation of sale deed and permanent injunction with the averment that land in dispute, an agriculture land, originally belonged to his grand-fatherLate-Shri Bhura and after his death it solely devolved upon his father late Shri Narayan and mutation was also opened in his favour. It was2 also averred that his father Shri Narayan died in Samvat Year 2030 and upon his death the land in question devolved upon him, his brother defendant-Shri Nandlal and their mother-Smt.Bhuli and all of them became co-tenant and joint possessors of the same and the mutation was also opened in their favour. It was further submitted that their mother died in the year 1992 and thereafter he and his brother-Shri Nandlal became co-tenant of the land in question and since they are in joint possession of the same and it has not been divided between them. It was further submitted that his brother-Shri Nandlal without his permission and consent sold one half undivided share of the land in question by a registered sale deed dated 16.5.1995 to the defendant-respondent-Shri Chandra Prakash in lieu of sale consideration of Rs.50,000/-. It was also averred that the land in question is an ancestral property which is still undivided and it is in joint possession of him and his brother and, therefore, his brother did not have a right even to sale one half share of the same. It was prayed by the appellant that the sale deed dated 16.5.1995 may be declared void, illegal and inoperative against his rights and as a consequence it may also be cancelled. It was also prayed that the respondent-defendants may be restrained by way of permanent injunction not to take possession of the land in question. In the alternative, it was also prayed that after taking the amount of sale consideration from him, a sale deed may be ordered to be executed in favour of him in respect of the share so sold. The defendantrespondents filed separate written statements and it was averred by them that the land in question was partitioned about 25 years ago3 and since then both the brothers were in separate possession of their respective shares and the defendant-Nandlal after selling his half share of the land has handed over possession of the same to the defendant-purchaser-Shri Chandra Prakash. On the basis of pleadings of the parties, necessary issues were framed by the trial Court. In support of his case appellant produced oral as well as documentary evidence whereas the defendant-respondents failed to produce any evidence. The learned trial Court after hearing both the parties decreed the suit and as a consequence of that the sale deed dated 16.5.1995 was declared to be illegal and inoperative and it was cancelled also. It was further ordered that defendantrespondent-Shri Chandra Prakash (purchaser) may be evicted from the part of the land which was sold to him and the possession of the same may be handed over to the plaintiff-appellant. The learned trial Court found that from the sale deed it is clear that the defendantrespondent-Nandlal has sold a specified share of the land in dispute which is still undivided and in the joint khatedari of both the brothers whereas he was not legally authorised to sale a specified share of the same. The defendant-respondent-purchaser-Shri Chandra Prakash feeling aggrieved, filed appeal under Section 96 CPC and the same was allowed by the appellate Court vide impugned judgment and decree dated 24.8.2008. The appellate Court was of the view that from the sale deed it cannot be said that any specified share or portion of the land in question has been sold by the respondent-Shri Nandlal whereas the legal position is that a cosharer of an agriculture land has a right to sell his undivided share in4 it without there being partition of it and without obtaining permission or consent of the remaining co-sharer. For its conclusion the learned first appellate Court mainly relied upon the case of Khema Vs. Shri Bhagwan and others, 1994 2 RajLW 14. Feeling aggrieved, the plaintiff-appellant is before this Court by way of this civil second appeal.
(3.) The respondents did not appear despite due service of notice upon them. The appeal was admitted for hearing vide order dated 20.2.2009 on the following substantial questions of law: "(i) Whether the land in question is in the joint tenancy of the plaintiff and the respondents and was undivided. (ii) Whether deceased-Nandlal was having right to sale the undivided land in question and thus, the sale deed dated 16.5.1995 becomes null and void.";