1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.378/2011 Jafar versus Mohd.
Babu & ORS.Date of Judgment :: 12th March, 2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.R.K.Charan, for the appellant.
---- BY THE COURT: 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.
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 KhaSr.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 2 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.
After hearing the parties, the trial court came to the conclusion that the appellant-defendant was not bona fide 3 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.
Feeling aggrieved, the appellant filed fiRs.appeal.
The fiRs.appellate court after hearing the parties came to the conclusion that the appellant was not bona fide purchaser; plaintiff and his brothers defendant Nos.2 and 3 had 1/3rd share each and, consequently, upheld the judgment passed by the trial court.
It was submitted by learned counsel for the appellant that both the courts below fell in error in decreeing the suit/dismissing the appeal and the same are vitiated for non- consideration of material evidence.
It was submitted that when the land was standing in the name of Aslam and sale deed was executed by him, there was no reason for the trial court to come to the conclusion that appellant was not a bona fide purchaser.
I have cnosnidered the submissions made by learned counsel for the appellant.
Both the trial court and appellate court have concurrently come to the conclusion that the action of the defendant in purchasing the entire suit property by way of execution of sale 4 deed by Aslam, when in fact he had only 1/3rd share in the said property, was not bona fide; the trial court by indicating that the defendant Jafar was related to the plaintiff and was staying in the residential area and have their agricultural fields next to each other, came to the conclusion that the fact that the land in question was owned to the extent of 1/3rd each by the three brothers was well within the knowledge of Jafar; the said finding cannot be said to be perveRs.so as to require interference in the second appeal.
So far as the fact that the mutation was standing in the name of Aslam and, therefore, the sale was rightly executed by Aslam in favour of the appellant is concerned, suffice it to notice that mutation does not confer title and admittedly when the land in question was owned by Dulla alias Abdulla, father of plaintiff and defendant Nos.2 and 3, who died intestate, all the three brothers had 1/3rd share each in the said property and Aslam could not have executed sale deed for the entire land in favour of the appellant.
Consequently, there is no substance in the appeal and the same is, therefore, dismissed.