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2017 Supreme(Raj) 427
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
DEEPAK MAHESHWARI, J.
Kailashchandra S/o Late Shri Radhakishan ji - Appellant
Versus
Sant Ramtaram Guru Sant Shri Bhagatram ji Ramsnahi & Anr. - Respondents
S.B. Civil First Appeal No. 317 of 2013
Decided On : 30-05-2017
Advocate Appeared:
For the Appellant : Mr. R.R. Nagori, Mr. Alkesh Agarwal, Mr. S.L. Kumawat, Mr. Akshay
For the Respondents: Mr. Ramit Mehta, Mr. Muktesh Maheshwari, Mr. Tarun Dudia, Mr. Saurabh Maheshwari
Headnote:
Civil Procedure Code ,1908 - Order 41 Rule 31- Hindu Adoption and Maintenance Act, 1946 - Sections 12 and13 - Adoption of son - Appeal – Suit for cancellation of sale-deed – Seeking for injunction and pre-emption -Appeal are that plaintiff claiming him to be son filed a suit before trial Court wherein it was averred by him that a residential house located at Mahatma Gandhi Hospital Road was purchased by out of his own income and he died then plaintiff is in possession of house as its owner and he had to move out frequently for his business purpose and his mother was introduced to Sect by who happens to be son of her brother and both of them persuaded his mother and could succeed in getting said house sold to defendant Sect through a fictitious sale-deed No consideration amount was paid for said sale sale-deed was executed after taking in undue influence on account of her faith property was handed over to defendant which remained in possession of plaintiff it was also alleged that plaintiff was co-owner and co-sharer of said house along with her mother and thus she alone was not entitled to sale house - Held , Plaintiff himself has admitted in his cross-examination that he was arrested on charge of breach of peace and he was not permitted to enter into disputed property from he has denied suggestion that locks put by defendant on property in dispute were broken open by him, but this denial does not appeal to logic in view of FIR lodged against him and charge-sheet having been filed against him after investigation DW-1 has stated that on, plaintiff made a forcible entry in house in dispute for which FIR was lodged against him In light of it appears that plaintiff appellant was not in continuous and legal possession over property in dispute though he tried to make forcible entry therein on certain occasions and It has also been found that he was not having any legal title right or interest in the appeal fails and is dismissed property in capacity of co-sharer being an adopted son and trial Court has rightly held that plaintiff appellant was not entitled for any injunction order against defendant who is said to have purchase property by way of sale-deed thus upholding findings of trial Court, this point is also found proved in favor of respondent defendant and against appellant plaintiff and stated and discussed above all points for determination framed by this Court have been found proved in favor of respondent defendant and against plaintiff appellant- Resultantly, accordingly, while upholding judgment and decree passed by trial Court - Appeal is dismissed
1. Appellant plaintiff has preferred this appeal against the judgment and decree dated 08.08.2013 passed by learned Addl. District & Sessions Judge No.2, Bhilwara whereby he dismissed the suit of plaintiff filed for cancellation of sale-deed as also seeking injunction and pre-emption.
2. Facts in brief giving rise to this appeal are that plaintiff Kailashchandra, claiming him to be son of Radha Kishan Joshi, filed a suit before learned trial Court wherein it was averred by him that a residential house located at Mahatma Gandhi Hospital Road, Bhilwara was purchased by Radha Kishan Joshi out of his own income. He died on 6.12.2002. Since then, plaintiff is in possession of the house as its owner. He had to move out frequently for his business purpose. His mother Smt. Kamla Devi was introduced to Ramsnehi Sect by Vijay Kumar, who happens to be son of her brother Radheyshyam Tripathi. Vijay Kumar and Dinesh Kumar both of them persuaded his mother and could succeed in getting the said house sold to defendant Sant Ramta Ram of Ramsnehi Sect through a fictitious sale-deed on 11.07.2008. No consideration amount was paid for the said sale. The sale-deed was executed after taking Smt. Kamla Devi in undue influence on account of her faith in the said Sect. No possession of the said property was handed over to defendant which remained in possession of plaintiff. It was also alleged that plaintiff was co-owner and co-sharer of the said house along with her mother and thus, she alone was not entitled to sale the house.
On these grounds, the said sale-deed is liable to be declared null and void. Even then, if the Court does not deem it proper to set aside the sale-deed, it was alternatively prayed that plaintiff is entitled to be substituted in the said sale-deed in place of defendant in exercise of his right of pre-emption being co-sharer of the said property as also being ready and willing to pay sale consideration shown in the sale-deed as Rs.10,00,000/- and to restrain the defendant from interfering with peaceful enjoyment and possession of plaintiff.
3. Defendant denied the facts mentioned in the plaint. Firstly, it was denied that plaintiff is son of Shri Radha Kishan. It was averred that Radha Kishan died without any issue. Plaintiff Kailash Chandra was natural son of Sukh Ram Joshi and not of Radha Kishan Joshi. It was also averred that plaintiff never remained in possession of the disputed property as owner. He is residing at Surat (Gujarat) along with his family members from last so many years in connection with his business. It was also averred that Kamla Devi is not mother of plaintiff. She also did not have any issue. She died at General Hospital, Chittor. She was residing with her nephew Dinesh Chand at Adityapuram during her last days. All the facts mentioned in the plaint regarding sale-deed having being executed without consideration, fictitiously and just because of faith of Kamla Devi in Ramsnehi Sect were also denied.
It was also averred that plaintiff has no locus standi to allege that the sale-deed was fictitious and without consideration. He also does not have any right of pre-emption on the disputed property. It has also been averred in the written statement that as Radha Kishan Joshi and Kamla Devi did not have any issue, they kept 2-3 boys with them in the hope that those boys will serve them in their old age but all of them left the couple after getting married. In these circumstances, Radha Kishan Joshi executed will in favour of his wife Kamla Devi in respect of the disputed property. In due course of time, Kamla Devi sold this property to defendant vide sale deed dated 11.07.2008 and handed over possession of the house to him, however, her domestic articles remained in the said house as she had become old and unwell. Thereafter, she went to her brother’s house at Seti, District Chittor and ultimately died there in General Hospital on 23.08.2008. It was also stated that plaintiff is also known as Kailash Pr
