- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 15.03.2011 passed by Additional District Judge, Deedwana, whereby, the appeal preferred by the appellant against the judgment and decree dated 19.08.2009 passed by Additional Civil Judge (Senior Division), Deedwana has been dismissed.
(2.) THE facts in brief may be noticed thus : plaintiff Mohd. Babu filed a suit for cancellation of registered sale deed dated 25.02.1984 against Jafar (purchaser), Aslam (vendor) and Hanif with the averments that land ad measuring 16 Bigha 17 Biswa comprised in Khasra No.1864 situated at Deedwana was in the ancestral Khatedari of plaintiff and his brothers Aslam and Hanif, whose recorded Khatedar was their father Dulla alias Abdulla, who died in September, 1982; whereafter the Khatedari should have been recorded in the names of three sons; however, the defendant No.1 Jafar got the same mutated in the name of defendant No.2 Aslam only, which is ab initio void; all the three sons have 1/3rd share each in the said land; on 25.02.1984 the sale of the land was executed by someone claiming himself to be Aslam; at the time of registration defendant No.2 Aslam was minor and the said registration was suppressed from 25.02.1984 to 28.01.1996, which came to light on 09.09.2002 and, therefore, proceedings were initiated before Additional Collector, Deedwana for cancellation of mutation; while deciding the appeal on 20.02.2003 the Additional Collector, Deedwana held the mutation to be incorrect but further ruled that without getting the sale deed declared void by a competent civil court, the mutation cannot be cancelled; FIR was lodged against defendant No.1 Jafar and his father Mumtaj for fraudulent document and criminal proceedings were pending; ultimately, it was prayed that the sale deed be declared void. A written statement was filed by defendant No.1 Jafar and it was submitted that the agricultural land was purchased by him from Aslam for consideration as he was the recorded Khatedar; the land is being cultivated by him for last 20 years and he is in possession; allegations were made against plaintiff and defendant Aslam regarding collusion; it was claimed that no cause of action has arisen in favour of the plaintiff and in absence of relief for possession, the suit is liable to be rejected. The trial court framed three issues. On behalf of plaintiff two witnesses were examined and five documents were exhibited. On behalf of defendant DW -1 Jafar appeared in the witness box.
(3.) AFTER hearing the parties, the trial court came to the conclusion that the appellant -defendant was not bona fide purchaser as he was related to the plaintiff and was well aware of the fact that the land in question did not belong to defendant No.2 Aslam alone; the land in question in fact belonged to Dulla, father of the plaintiff and defendant Nos.2 and 3 and, therefore, the same should have been recorded in favour of all the three brothers; the suit was within limitation; the plaintiff had the cause of action; however, it was held that to the extent of Aslam's share, the sale deed cannot be set aside and ultimately to the extent of 1/3rd share each of plaintiff Mohd. Babu and defendant Hanif, the suit was decreed and the sale was declared as void.;