Suresh Chand v. Om Parkash & Ors.

CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.J.P. Sharma, Advocate for the appellant. RAKESH KUMAR JAIN J. **** The present appeal is filed by defendant No.1 against the judgment and decree of the First Appellate Court by which the judgment and decree of the trial Court has been set aside. The plaintiff has filed the suit for declaration on the ground that earlier Mool Chand son of Ram Pratap, predecessor-in-interest of the parties to the suit, was owner in possession of the entire land. The suit land was ancestral in which plaintiff as well as defendants No.1 and 2 had interest being members of the joint Hindu family. After the death of Mool Chand, the plaintiff along with defendants No.1 & 2 inherited the property in three equal shares being coparceners and since then they are cultivating the suit land as per their share. The rights of the plaintiff and defendants No.2 and 3 were settled in Civil Suit No.610 of 28.7.1990 titled as Om Parkash Vs. Suresh Chand etc. However, the defendants, on the basis of wrong entries with respect to the mutation No.517 dated 12.6.1989, alienated some of his share by virtue of sale deed dated 9.9.1997 and

15.6.1998, decrees dated 13.8.1998, 5.6.1998 and 14.9.1991. Thus, it was alleged that the alienation of the land out of his 1/3rd share is illegal, null and void as the defendants are bent upon to alienate the suit land proclaiming themselves as co-sharers to the extent of 1/6 share each as RSA No.291 of 2010 (O&M) -2- per Mutation No.517 and are bent upon to interfere in his peaceful possession. In the written statement, it was alleged that the plaintiff is a co- sharer to the extent of 1/6 share only because after the death of their father, all their brothers and three sisters inherited the land in six equal shares. The plaintiff was never declared owner to the extent of 1/3 share by virtue of judgment and decree dated 29.8.1997. The said decree is fake and fabricated. On the pleadings of the parties, following issues were framed: - “1. Whether the plaintiff is entitled to decree of declaration to the extent and in the manner as prayed for on the grounds mentioned in the plaint? OPP

2. Whether mutation No.517 under challenge and sale deed dated 9.9.1997 under challenge are illegal on the grounds mentioned in the plaint? OPP

3. Whether sale deed dated 115.6.1998, decree dated 5.6.1998, decree dated 14.9.1991, decree dated 13.8.1998 under challenge are illegal on the grounds mentioned in the plaint? OPP

4. Whether plaintiff is entitled to decree for permanent injunction against the defendant to the extent as prayed for? OPD

5. Whether suit is within limitation? OPD

6. Whether suit is not maintainable in the present form? OPD

7. Whether plaintiff is estopped to file the suit due to his own act and conduct? OPD

8. Whether suit is false and frivolous to the knowledge of the plaintiff? OPD

9. Relief.” RSA No.291 of 2010 (O&M) -3- Both the parties led their oral as well as documentary evidence. The learned trial Court decided issues No.1 to 3 against the plaintiff and issues No.4 to 6 against the defendants for want of evidence. Ultimately, the suit filed by the plaintiff was dismissed by the learned trial Court. The Plaintiff has sought a declaration of his right in terms of a decree passed in Civil Suit No.610 of 28.7.1990 whereas the defendants are claiming their right on the basis of mutation No.517. The learned First Appellate Court has found that in the Civil Suit No.610 of 1990, compromise deed (Ex.CX) was filed by the parties, which is Ex. P-1 in the present case. In the said compromise, defendant No.1 is shown to be the attorney of defendants No.2 to 5. Copy of the General Power of Attorney filed by defendant No.1 in the said case is Ex.PW1/A which shows that defendants No.2 to 5 had authorised defendant No.1 to act on their behalf in Civil Suit No.610 of

1990. The compromise deed Ex.P-1 was signed by defendant No.1 on his behalf and on behalf of defendants No.2 to 5. Therefore, it was held that he is now estopped from alleging that the compromise was not legally executed as it was not signed by the defendants. It was held that as per judgment on the basis of compromise (Ex.P18) and decree (Ex.P-19), Om Parkash, Suresh Chand and Ramanand are entitled to the agricultural land to the extent of 1/3rd share each. Thus, the First Appellate Court had held that the Mutation No.517 dated 12.6.1989 was illegal and contrary to the judgment and decree passed in Civil Suit No.610 of 1990. Aggrieved against the judgment and decree of First Appellate Court, the present appeal is filed by defendant No.1 alone in which learned counsel for the appellant has submitted that the mutation No.517 was illegally sanctioned by the Revenue Authorities by giving 1/6 share each to all the sons and daughters of Mool Chand. No doubt, in normal circumstances, the said mutation could not have challenged but once the shares have been transferred by the other heirs of Mool Chand in the Civil Suit No.610 of 1990 by authorising defendant No.1 through a General Power of Attorney, they cannot be allowed to turn around and say that the mutation, which has been sanctioned, is in accordance with law. From the perusal of the record, I do not find any question of law, much less substantial, involved in this appeal as envisaged under Section 100 of the RSA No.291 of 2010 (O&M) -4- Code of Civil Procedure, 1908 (for short ‘CPC’) and as such I do not find any merit in this appeal. Hence, the same is hereby dismissed in limine, though, without any order as to costs. November 30, 2010 Vivek (RAKESH KUMAR JAIN) JUDGE