Hon'ble Dr. KOTHARI, J.—This first appeal has landed on my board after 26 years of its institution and being old matter, refusing any further accommodation, arguments were heard at length and record, almost in torn condition, was painstakingly perused with the assistance of learned counsels.

2. This first appeal under Section 96 of the C.P.C. is directed against the judgment and decree dated 28.9.1985 passed by the learned Additional District Judge No.1, Sri Ganganagar in Civil Suit No.165/1982 - Birbal S/o Asha Ram vs. Likhma Ram and Ors. The suit was filed for cancellation of sale-deeds Ex.7 to 11 executed on 23.1.1973 and 24.1.1973 in respect of agricultural land situated in Chak No. 32 GG, Tehsil and District Sri Ganganagar. The pedigree of the family as given on page 2 of the impugned judgment dated 28.9.1985 is given below for ready reference :

NANU

Budhar (deceased) Dhanna Mamraj

Surja (adopted

son deceased) Likhma Ram (Defendant) Duli Chand (Defendant)

Asha (died

June 1976) Surja (deceased) Adopted by Budhar

Birbal (Plaintiff)

3. The land in question was sold by Asha Ram, father of plaintiff Birbal Ram in the year 1973 and after 3 years of such sale in question, he expired in the year 1976. His father Dhanna died in the year 1937 (sic 1973) and other brother Budhar also died after Dhanna issueless. The defendant Likhma Ram and Duli Chand are sons of third brother Mam Raj. The land in question in total measured 84 bighas, which was partitioned between three brothers sons of Nanu, each got 28 bighas of land in question. It has further come in the impugned judgment that said Asha Ram, father of the plaintiff Birbal Ram purchased 10 bighas of land for Rs. 2400/- on 5.1.1945 from Mamraj his uncle and thus, with him, 38 bighas of land became available. After the death of Budhar, his 28 bighas fell into the share of Asha Ram and Mam Raj; 14 bighas each and mutation entries in this respect were recorded on 31.10.1957. Thus, Asha Ram in total got 52 bighas of land and Mamraj got 32 bighas of land in question. The said agricultural land being ancestral in nature was sold by Asha Ram by different sale-deeds Ex.7 to 11 in favour of defendants Likhma Ram and Duli Chand S/o Mamraj and thus, cousins of seller Asha Ram and also in favour of strangers Satpal Singh, Resham Singh, Prakat Singh, all sons of Trilok Singh and one agreement to sell was executed in favour of Trilok Singh himself. The sales in question were effected in the year 1973 as already stated above for consideration and said sale-deeds were challenged by the plaintiff Birbal Ram mainly on the ground that there was no legal necessity of the family for his father Asha Ram to have sold the said joint family property and therefore, the sale-deeds were void and deserves to be cancelled.

4. The learned Court below after recording evidence has decreed the suit of the plaintiff and except issue No.3 about the receipt of consideration by seller Asha Ram, which was decided against the plaintiff Birbal Ram, holding that such consideration was received by Asha Ram, other issues have been decided in favour of the plaintiff Birbal Ram and the trial Court below has held that said Asha Ram had no right to sell the ancestral agricultural land, a joint family property in question and thus, the sale-deeds Ex.7 to 11 have been cancelled by the learned Court below. Being aggrieved by the same, the defendants Likhma Ram and others have approached this Court by way of present appeal.

5. Mr. R.K. Singhal, learned counsel appearing for the defendants-appellants submitted that the learned Court below has erred in decreeing the suit and canceling the sale-deeds in question because firstly atleast 10 bighas out of 52 bighas sold by Asha Ram, was his self-acquired property having been purchased by him in the year 1945 when he was 22 years of age, therefore, the same being in joint family property, could be sold in his own right. Secondly, he also urged that the evidence in the form of his daugh

Click Here to Read the rest of this document