- (1.) THIS appeal under Section 96 CPC is directed against judgment and decree dated 18.11.1989 passed by District Judge, Balotra, whereby, the suit filed by the plaintiffs has been dismissed.
(2.) THE facts in brief may be noticed thus: the plaintiffs filed a suit for declaration and possession, inter alia, with the averments that they were members of joint Hindu family; plaintiff No.1 is the widow of late Basti Ram alias Basti Mal and plaintiff No.2 is his adopted son; plaintiff No.2 is having his business in the south (Deshawar) and plaintiff No.1 mostly resides at her village Saila and often visits Siwana; in village Siwana (Padru Ka Bas, Hanutpura) the plaintiffs have got their patta -sud plot admeasuring 40x40 yards described in para 2 of the plaint; the Patta is in the name of late Shri Basti Ram and after his death, plaintiffs are owners and they remained in uninterrupted and peaceful possession of the plot upto the end of year 1982; in Samwat 2037 Harakchand owner of the plot on the southern side of the suit plot raised wall and its 50% expenses were borne by the plaintiffs; likewise Dhanraj neighbour on the northern side build a wall in Samwat 2038 and its 50% expenses were also borne by the plaintiffs; in Samwat 2038 itself the plaintiffs placed stone slabs on the eastern and western sides of their plot and also unloaded three trucks of stones, to which, the defendants did not raise any objection; the plaintiffs applied for permission to raise construction from the Municipal Board, Siwana on 05.01.1983 when they learnt that defendant No.1 has unauthorizedly and illegally obtained permission to raise construction on the suit plot by claiming plot of his ownership and possession; the defendant No.1 has obtained the said permission by giving a false affidavit; the plot was never sold to the defendants and its possession was never delivered to them, the Patta of the suit plot was also not in the name of defendants; it was then claimed in the plaint that as plaintiff No.2 is doing business in the south, the plaintiff No.1 sold southern half portion of the suit plot to Sumer Mal and northern portion to Bhanwar Lal and executed agreements to sell in their favour; application was made with the Municipal Board, Siwana, which declined to deposit the surcharge vide its letter received on 01.08.1983 on account of the objections raised by Mool Chand; the defendants have unauthorizedly and illegally committed trespass over the suit plot on 26.09.1983; when an application was filed before the Collector, Barmer, an FIR was also lodged with the police; the defendants are bent upon committing breach of peace and, therefore, proceedings under Section 145 Cr.P.C. were initiated and proceedings were filed in the Court of Sub Divisional Magistrate, Balotra; the police inspected the site on 30.09.1983 and prepared its report; on 21.10.1983 the plaintiff No.1 got unloaded lime in the suit plot, whereafter, the defendants put a lock on the door and also posted a person in the suit plot and have thus deprived the plaintiffs from using the suit plot; the agreements to sell entered into by the plaintiff No.1 with Sumer Mal and Bhanwar Lal have been cancelled by the purchasers; it was stated that the defendants have illegally and unauthorizedly taken possession of the plaintiffs' suit plot and they were liable to be evicted from the same; it was prayed that the plaintiffs be declared to be the owners of the suit plot and possession be delivered to them from the defendants. The defendants contested the averments made in the plaint by filing their written statement; it was, inter alia, claimed that late Basti Ram executed agreement to sell the suit plot on 23.09.1948 in favour of defendant No.1 Mool Chand and the agreed consideration was also received by him; the possession of plaintiffs over the suit plot until 1982 was denied; unloading of stones and putting up of stone slabs was also denied; it was claimed that defendant No.1 has raised construction over the suit plot after obtaining permission from the Municipal Board; the FIR lodged with the police on 30.09.1983 was false and that proceedings initiated before the Sub Divisional Magistrate have also been dismissed on 05.11.1983; it was claimed that the defendants were in continuous possession of the suit plot for last over 35 years and they have fixed stone slabs on its boundary; the stones and the lime lying on the suit plot belonged to them.
(3.) IN the additional pleas, it was stated that Basti Ram and defendant No.1 Mool Chand were distant brothers; Basti Ram was having his business at Madurai and, therefore, his local work was being looked after by defendant No.1; the suit plot was purchased by defendant No.1 for Basti Ram and its Patta was obtained in his name; Basti Ram gave right to sell the suit plot to defendant No.1; the maternal uncle of defendants wanted to purchase the suit plot and, therefore, the defendant No.1 got Patta of the suit plot from Basti Mal and got executed an agreement dated 23.09.1948 through Narsingh Mal Kanugo; the agreement was sent to Basti Ram by defendant No.1 for signatures and as per the instructions of Basti Ram the price of the plot was sent to his village Saila, the price of the plot was not paid by defendant No.1's maternal uncle and he also did not want to retain the plot and, therefore, the sale could not be registered; however, ever since the said agreement the suit plot continues to be in uninterrupted possession of the defendants as owners and based on the possession the defendant No.1 got his name entered in the house tax record of the Municipal Board in 1979 -80; the defendants requested plaintiff No.1 for getting the transfer registered but she asked them to return the Patta; in 1981, three persons intervened in the matter and as the defendants were not in possession of the agreement, the said intervener asked the defendants to return the Patta to plaintiff No.1 for the time being and it was decided that in case defendant No.1 was able to satisfy about existence of the agreement within 12 months, sale deed would be registered in defendants' favour and Patta would be returned to them; in June, 1982 the agreement was located alongwith letters of Basti Ram and on that basis plaintiff No.1 was requested to get the sale registered; the intervener also directed the plaintiffs to get the sale registered and return the Patta, which direction was not complied with; the agreement to sell executed by plaintiff No.1 was alleged to be a make belief document and ultimately it was submitted that the plaintiffs have instituted a false case and the defendants are, therefore, entitled to special damages and that they are entitled for return of the Patta and also get the sale deed registered.;