- (1.)This appeal under Section 96 CPC is directed against the judgment and decree dated 11.02.1987 passed by District Judge, Churu, whereby, the suit filed by the plaintiff-respondent for cancellation of sale-deed dated 04.06.1979 has been decreed.
(2.)The facts in brief may be noticed thus: the plaintiffrespondent filed a suit with the averments that he was adopted son of defendant No.3 Magharam regarding which a registered adoption-deed had been executed; Magharam had adopted him in the childhood itself and adoption-deed in this regard was got registered; agriculture operations in Khasra No.377 admeasuring 50 Bigha 6 Biswa were being conducted by him alongwith his father; the adopted father is aged about 85 years, who is hard of hearing and is prone to being mislead; therefore, he had tried to sell the land and the plaintiff-respondent filed a suit in the year 1976 against him before Sub Divisional Officer, Churu, which was compromised and, therefore, he started conducting agriculture operations together; Rugharam, father of defendant No.1 and Surjaram, father of defendant No.2 taking advantage of plaintiff's absence got executed a sale-deed of the agriculture field in question without consideration for a sum of Rs.20,000/- in favour of defendant Nos. 1 and 2 and got it registered on 04.06.1979, whereas the ancestral property could not have been sold by Magharam all by himself; under the garb of the saledeed, defendant No.1 tried to take possession of the field then the plaintiff-respondent filed a suit for injunction and obtained temporary injunction from the Sub Divisional Officer, Churu, however, the defendants are bent upon committing illegal activities; Magharam had no reason to sell the field as he had no requirement of money and, therefore, without requirement for the joint family and without consideration the sale-deed has been executed, which is liable to be cancelled; in the alternative, it was claimed that as plaintiff has half share in the suit property and if the Court comes to the conclusion that Magharam could have sold half share of the property, being a co-tenant/co-owner of the suit field, the plaintiff has right of pre-emption and he is prepared to pay 50% of the sale consideration as prior to the sale no information whatsoever was given. Ultimately, it was prayed that the suit property being ancestral property and the same having been sold not for the benefit of the family and without authority, it be declared that plaintiff is not bound by the same and the same be cancelled and in the alternative as the plaintiff has right of pre-emption, the defendant Nos. 1 and 2 be directed to execute the sale-deed qua the half portion of the field sold by Magharam and they be restrained from interfering with the suit property.
(3.)A written statement was filed by the defendant Nos. 1 and 2 jointly with the averments that defendant No.3 Magharam was a person of reasonable prudence and is the sole owner of the suit filed and after receiving consideration has legally sold the same; the disputed field was not ancestral property and plaintiff was not a co-parcener and further he has no right to pre-emption, therefore, he is not entitled to get the sale-deed cancelled. Additional plea was raised that the suit seeking cancellation is already pending before Sub Divisional Officer, Churu and, therefore, the present suit was not maintainable. Defendant No.3 Magharam filed his written statement and accepted the case set up by the plaintiff and contended that no consideration was received by him and defendant Nos. 1 and 2 got the sale-deed executed by deception and as the field in question was ancestral and the plaintiff is an adopted son, without requirements of the family, the field could not have been sold and, therefore, the sale-deed was liable to be cancelled. During pendency of the suit, defendant No.3 Magharam died and as besides plaintiff there was no other legal representative, his name was deleted from the array of parties.