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2014 DIGILAW 1586 (ALL)

Doli Jawahar v. Jojaf Jawahar

2014-05-14

PANKAJ NAQVI

body2014
JUDGMENT Pankaj Naqvi,J. Heard Mohammad Samiuzzaman Khan, learned counsel for appellant and Syed Wajid Ali, learned counsel for respondent on the admission of appeal. 2. This is defendants' second appeal challenging the judgment and decree, whereby suit for cancellation of sale deed has been dismissed. 3. For convenience, parties shall be referred as they were described in trial court, i.e. plaintiff/defendant, unless specified otherwise. 4. Joseph Jawahar (respondent) instituted Original Suit no. 30 of 2009 for mandatory injunction and a permanent injunction alleged that defendants (appellants) are his real brothers. and he along with 25 persons bought a plot in dispute measuring 1500 sq. meters under a registered sale deed (total area being 1158.04 sq. meters and after allocation of 341.96 sq. meters land for road, plaintiff was given ownership rights over 44.54 sq. meters of plot), over which he constructed a house and municipal number assigned. It was alleged that as said property was purchased by his own personal funds, a request was made by defendant to stay in the said property, as licencee was accepted, but upon a request made for vacation of the said property, as they refused to vacate and deliver possession thereof, hence the suit. The defendants resisted the claim on the ground that plaintiff was not the owner of the property in dispute and plea of alleged licence was denied. It was further stated that the funds were provided by father of defendants/ plaintiffs for purchasing the property in dispute in the name of father, but the same was fraudulently purchased in the name of plaintiff. Defendants claimed ownership of the property in dispute on the basis of will dated 31.05.2007 executed by their late father. Doli Jawahar and Benet Jawahar also instituted Original Suit no. 139 of 2009, for cancellation of sale deed dated 11.09.1979 in favour of plaintiff on the ground that the same was an outcome of fraud, as the sale deed was to be fraudulently executed in the name of their father, but the same was executed in the name of plaintiff, Joseph Jawahar. Both suits were consolidated, pleadings exchanged and evidence led. The Trial Court decreed O.S. No. 30 of 2009 and dismissed the connected suit. Accordingly, two First Appeals were preferred, i.e. First Appeal No. 84 of 2011 (arising out of O.S. no. Both suits were consolidated, pleadings exchanged and evidence led. The Trial Court decreed O.S. No. 30 of 2009 and dismissed the connected suit. Accordingly, two First Appeals were preferred, i.e. First Appeal No. 84 of 2011 (arising out of O.S. no. 30 of 2009) and First Appeal No. 85 of 2011 (arising out of O.S. No. 136 of 2009). Both the appeals were heard together and dismissed by the judgment and decree, which is impugned herein. 5. No evidence was adduced by appellants/ defendants that prior to filing of the suit for cancellation, late father of the parties during his life time initiated any proceedings for cancellation of the registered sale deed dated 25.11.1979 (Paper no.11-C). It was highly improbable that a registered sale transaction, acted before the Municipal Authorities would go unnoticed for as many as 20 years without being brought to the notice of other members of the family. 6. The sole contention advanced on behalf of appellant is that the courts below committed patent perversity in refusing to hold that sale deed dated 25.11.1979 was an outcome of fraud. 7. The Court has perused the allegations made in paragraph-13 and 15 of the plaint of suit filed by appellant for cancellation of sale deed and finds that alleged allegations relating to fraud are set-forth in paragraph-13 and 15. A perusal thereof reveals that it was stated that it was only upon notice of O.S. No.30 of 2009 being received on 14.02.2009 that the appellants came to acquire knowledge of the execution of the registered sale deed dated 25.11.1979 in favour of Joseph Jawahar. It was further stated in paragraph 15 of the plaint that the sale deed was in fact to be executed in the name of M. Jawahar, father of the parties, whereas fraudulently it was got executed in the name of Joseph Jawahar to the detriment of the interest of appellants, as Joseph Jawahar had no means or source to provide requisite sale consideration and that funds were provided by their late father. The courts below have held that parties being closely related to each other, i.e. being real brothers, it was highly improbable that a registered sale deed executed on 25.11.1979 would go unnoticed for 20 years, coupled with the fact that during the lifetime of the father, no action was undertaken by him to repudiate the sale deed. The courts below have held that parties being closely related to each other, i.e. being real brothers, it was highly improbable that a registered sale deed executed on 25.11.1979 would go unnoticed for 20 years, coupled with the fact that during the lifetime of the father, no action was undertaken by him to repudiate the sale deed. This sale deed was acted even before the Municipal Authorities. The burden to challenge the sale deed on the ground of fraud lay on plaintiff/ appellants of the connected suit. No evidence was led that sale was vitiated by fraud. 8. No substantial question of law arises. 9. No other plea is urged. The second appeal is dismissed with costs.