Nisha Gupta, J. - (1.) THIS first appeal under Section 96 CPC has been filed against the judgment and decree dated 22.4.2009 passed by Additional District Judge (Fast Track) No. 3, Camp Ajmer Kishangarh Distt. Ajmer in Civil Suit No. 10/2006 old 6/2005 whereby the decree has been passed for taking possession of land in question and registered sale deed has been cancelled.
(2.) THE brief facts of the case giving rise to this appeal are that plaintiff respondent filed a suit for cancellation of registered sale deed dated 16.2.2002 and for getting the possession of land in question. The alleged sale deed has been executed by the appellants No. 1 in favour of appellants No. 2. The contention in the plaint are that late Shri Kalyan and Shri Balu were real brothers, they were having total 28 bighas and 18 biswa agricultural land. Both were having half shares in the above land. Late Shri Kalyan was not having any son. He has only one daughter named Kamla, appellant No. 1, hence Shri Kalyan has taken the respondent in adoption as a son on 9.6.1960, when plaintiff -respondent was about 13 years of age and at that time appellant was less than three years of age, thereafter the land in Khasra No. 72, 73, 74, 196, 548 and 549 were in joint possession and ownership of Shri Balu and Kalyan, the respondent was carrying on agricultural work on the said land along with his father. Kalyan died on 20.8.1988 and all the rituals have been performed by respondent. Appellant No. 1 had executed an agreement in favour of respondent on 9.9.1988 and she has relinquished all her rights in the property and gave no objection certificate in favour of respondent and respondent is enjoying the land as owner of the land. On 10.4.91 in village Akodia a meeting was held of the respected persons and it has been agreed that the land may be transferred in the name of respondent. Late Shri Kalyan has also executed one Will dated 7.5.1975 during his life time in favour of respondent. Respondent also constructed a well on the land and he has also performed all customary ceremonies in connection with his sister Kamla and he was treated as son of deceased Kalyan. Thereafter, appellant No. 1 Smt. Kamla illegally mutated her name in the land in question and also sold the land illegally to appellant No. 2 on 16.2.2002, hence suit has been filed. The respondent has denied all the averments and denied execution of any deed relinquishing her right dated 9.9.1988. The contention in the written statement is that respondent is not the adoptive son of Kalyan. No Will has been executed in his favour, documents are forged one, she is only heir of Kalyan, hence having absolute right over the property and has rightly sold the land to Bholu appellant No. 2, meeting of villagers has also been denied. On the pleadings of the parties, the court below has framed 7 issues as under: The learned trial Court recorded the statements of PW/1 Narayan, PW/2 Gopi, PW/3 Ranglal, PW/4 Chagana and PW/5 Navi Khan and Exhibits P/1 to P/14 has been relied upon by plaintiff respondent whereas defence has examined D.W./1 Kamla, D.W./2 Bholu, D.W./3 Ram Karan, D.W./4 Ram Lal and D.W./5 Suraj Karan and Ex. A/1 to A/4 has been relied upon by them. After hearing the parties, the suit has been decreed as aforesaid, hence this appeal.
(3.) THE contention of the present appellants is that the findings of the court below are not proper. Documentary as well as oral evidence has not been looked into. The appellant No. 1 is the sole legal heir of Kalyan, documents are forged one, the court below has wrongly made presumption as regards Section 90 of the Evidence Act as on the date of the suit, the Will Ex. 2 was not of 30 years old, to prove Ex. 3 none of the witnesses have been examined. Appellant No. 2 is the bona fide purchaser, hence the appeal be allowed. Per contra, the contention of the respondent is that it has been amply proved before the court below that he is the adoptive son of Kalyan, he has been treated in the society like that. Ex. 2 Will also supports his contention about the fact of adoption. Will is 30 years old, hence the presumption under Section 90 of the Evidence Act has been rightly taken by the court below. There is no reason to disbelieve Ex. 3 and witnesses from the same village has also confirmed his right. Documents Ex. 6 and 7 are there which show that he took loan to dig the well and he has also get redeemed the property mortgaged which is verified by the document Ex. 8 which clearly proves the fact that respondent is the legal heir of deceased Kalyan and Kamla has relinquished all her right in his favour, hence sale deed is without jurisdiction and the court below has rightly held so.;