J.K. Ranka, J.

1. It is the plaintiff’s Special Appeal filed under Section 18 of the Rajasthan High Court Ordinance arises out of the judgment & decree dt.17/01/1994 whereby the Regular First Appeal preferred by the defendant No. 2 & 3 (respondents herein) under Section 96 CPC was allowed setting aside the judgment and decree dt.17/03/1986 passed by the trial court in Civil Suit No. 17/1981.

2. The brief facts of the case are stated as under :

2.1 For the sake of brevity and expression, the parties are referred to as per the rank assigned to them in the suit.

3. Plaintiff Malika Zamitul Jamanu Begum filed a suit for declaration, possession & mesne profit on 16/3/1981 with respect to the suit property against defendant No.1 Abdul Kayyum Khan and defendant No.2 Mohd. Islam & defendant No.3 Smt. Sharifan (subsequent purchaser). In the suit, the plaintiff sought herself to be declared as the true owner of the suit property. Such claim was based on an agreement dt. 03/07/1971 (unregistered), allegedly executed by the defendant No.1 in favour of the plaintiff. It is the case of the plaintiff that she executed a sale deed of the suit property on 02/07/1971 in favour of the defendant No.1 presented before Sub-Registrar on 5/7/1971 & registered on 21/7/1971 but such sale deed was a sham transaction. No sale consideration was ever paid by the defendant No.1 in lieu of such execution and it was never intended to transfer ownership to defendant No.1. The plaintiff further claimed that defendant No.1 executed an agreement on the very next date i.e. 03/07/1971 (unregistered) agreeing to re-convey the suit property to the plaintiff upon receipt of Rs.20,000/-. The plaintiff claimed that the sale deed was executed as a device to shield attachment/ sale of the suit property. The plaintiff further claimed that in defiance of such agreement of re-conveyance, defendant No.1 transferred the suit property to defendant No.2 & 3 and put them in possession of the same, the plaintiff claimed possession from defendant No.2 & 3. The plaintiff further claimed that the agreement for re-conveyance dt.03/07/1971 was stolen by the defendant No.1 and upon its discovery, the suit was instituted on 16/03/1981.

4. Defendant No.1 did not put his appearance in the suit despite service and the suit proceeded ex-parte against him but defendants No.2 & 3 (subsequent purchaser) entered appearance and denied the plaint averments. They claimed that the sale deed dt. 2/7/1971 was registered on 21/7/1971 was executed by the plaintiff in favour of the defendant No.1 was a real and genuine transaction and title was passed on to the defendant No.1 who, by execution and registration of two sale deeds dt.29/10/1980, transferred the suit property alongwith its possession to defendants No. 2 & 3 and thus claimed themselves to be the real owner of the suit property. The defendants further claiming the re-conveyance agreement to be a false and fabricated document and a byproduct of the conspiracy between the plaintiff and defendant No.1, designed to defeat the legitimate ownership of the defendants nos. 2 & 3 pleaded to dismiss the suit of the plaintiff. Contentions with respect to maintainability of the suit for failure to seek cancellation of the sale deed and the suit being time barred were also raised by the defendants.

5. The trial court, based upon the pleadings of the parties, framed following issues:-

(i) Whether the plaintiff was the real owner of the suit property ...Plaintiff

(ii) Whether the sale deed dt.02/07/1971 in favour of defendant No.1 was sham transaction, executed by the plaintiff without any consideration and defendant No.1, was merely a Benami owner ...Plaintiff

(iii) Whether defendant No.1was bound by the agreement (admission) dt. 07/02/1980 as per the averments made in Para10of the plaint. ...Plaintiff

(iv) Whether the plaintiff was not bound b