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IN THE HIGH COURT OF RAJASTHAN
RAMCHANDRA SINGH JHALA, J.
BADAN KANWAR — Appellant
Vs.
BHEEM SINGH — Respondent
Civil Second Appeal No.169 of 2013
Decided on : 28-08-2017
Rajasthan Tenancy Act – Section 17, 5(43) and 41 – C.P.C. – Order 41, Rule 27 – Cancelation of Sale Deed – The instant second appeal has been filed by the appellant-plaintiff against the judgment and decree by learned Additional District Judge, in Civil Appeal whereby he has affirmed the judgment and decree passed by learned Civil Judge (Sr. Division), in Civil Original Suit whereby said suit was dismissed – The main contention of the plaintiff is that late husband of plaintiff had no right to execute the said sale deed about the said land because he had not obtained khatedari rights and at the time of execution of sale deed, Ex.1, was Gair Khatedar, so sale deed is void, but the plaintiff had failed to prove in the trial court that due to said sale, how her rights were infringed – Held, It is admitted fact in this case that said land was self acquired property of husband of plaintiff and according to document Ex.3 Jamabandi which was produced by the appellant-plaintiff herself during the trial in the trial court, after execution of sale deed Ex.1 late husband of plaintiff obtained khatedari right over the suit land in his life time – Before getting khatedari right, neither late husband raised this objection regarding that he is gair khatedar nor the plaintiff or her son raised objection that due to gair khatedari, the sale deed Ex.1 is void – Then after death of husband of plaintiff and after expiry of period of 22 years of execution of sale deed Ex.1, the plaintiff has no right to raise any objection – So all these facts prove that father of respondent-defendant purchased the said land by way of sale deed Ex.1 bonafidely and he is bonafide purchaser and he paid consideration against the said sale to husband of plaintiff and after receiving the consideration, he executed sale deed Ex.1 in favour of late father of defendant and according to legal procedure by the competent authority, it was registered – In the examination in chief, DW-1, the respondent clearly stated that at the time of execution of sale deed Ex.1, late husband of plaintiff received consideration of said land and then after he gave that amount to his wife plaintiff – In the circumstances of the case, the findings arrived at by both the courts below about execution of sale deed Ex.1 and about the possession of the respondent-defendant over the said land as well as bona fide purchaser of the respondent-defendants father, this finding of fact cannot be said to be perverse in any manner – This Court finds no force in the present second appeal filed by the appellant Badan Kanwar and the same is liable to be dismissed at the admission stage – Accordingly, this second appeal filed by the appellant plaintiff is dismissed – Appeal Dismissed
Ramchandra Singh Jhala, J.
The instant second appeal has been filed by the appellant-plaintiff against the judgment and decree dated 16.9.2013 passed by learned Additional District Judge, Nathdwara (Rajasthan) in Civil Appeal No.16/2008 whereby he has affirmed the judgment and decree dated 26.2.2008 passed by learned Civil Judge (Sr. Division), Nathdwara in Civil Original Suit No.44/2008 whereby said suit was dismissed.
2. Briefly stated facts of the case are that the appellant-plaintiff instituted a suit on 28.2.2006 before the learned Civil Judge, Nathdwara for cancellation of the sale deed against the respondent-defendant. In the suit it is stated that the appellant plaintiff owns agriculture land situated at Patwar Halka Gunjol and same was in her possession and was recorded in the name of appellant-plaintiff in the revenue record, but in the year 2005 the respondent-defendant got the said property mutated in his favour on the basis of a sale deed dated 24.8.1984. It is submitted in the plaint that at the time when the sale deed was made, the land was in the name of Padam Singh, husband of appellant-plaintiff. The said land was gair khatedari land and a gair khatedar tenant has no right to sell the land without obtaining khatedari right. The appellant-plaintiff has physical possession over the said land and same was cultivated by her. She also invested huge amount on the said land and the respondent-defendant cannot dispossess her from the said land.
3. In the year 2005 she came to know that the land, which is in her possession, has been mutated in the name of respondent-defendant Bheem Singh as a khatedar on the basis of sale deed dated 24.8.1984 which were executed between appellant-plaintiff's husband and respondent-defendant's father. The appellant-plaintiff challenged the mutation entry by filing a mutation appeal which was allowed and entry of Bheem Singh made in mutation register has been cancelled. Thereafter the suit was filed by the appellant-plaintiff for challenging the said sale deed dated 24.8.1984.
4. The respondent-defendant filed written statement and denied all the averments made in the suit. It was admitted by the respondent-defendant that land belongs to the plaintiff's husband, but he had right to sell the said land, therefore, he executed a sale deed and registered the same on dated 24.8.1984 and after execution of sale deed, the said land was in possession of his father and after death of his father, the said land is in possession of defendant. The defendant also stated in written statement that said land was land of appellant's husband so he had right to sell out the said property. He has also stated that the suit was filed after 22 years of execution of sale deed, therefore, the said suit may be dismissed.
5. On the basis of pleadings, the learned trial court framed following issues:-
1 & vk;k okfn;k mlds okn ds in la0 2 esa of.kZr fodz; i= fnuakd 24-08-1984 dks fujLr djokus dh vf/kdkjh gS\
2 & vk;k okfn;k ds ifr ine flag }kjk mDr fodz; i= fof/kor :i ls izfroknh ds firk ds gd esa izfrQy izkIr dj fu"ikfnr fd;k x;k gS\
3 & vk;k okfn;k ds ifr }kjk mDr Hkwfe fodz; fnuakd 24-08-1984 ls izfroknh ds firk o izfroknh Hkwfe ij dkfct gS\
4 & vk;k okfn;k dk okn fe;kn ckgj gksus ls pyus ;ksX; ugha gS\
5 & vuqrks"kA
6. The learned trial court after hearing both the parties decided the issues in favour of respondent-defendant and against the appellant-plaintiff and dismissed the suit filed by the plaintiff vide judgment and decree dated 26.02.2008. The appellant-plaintiff being aggrieved of the said judgment and decree preferred an appeal before the learned Additional District Judge, Nathdwara, which was also dismissed vide judgment and decree dated 16.9.2013 and the judgment and decree passed by the learned trial court was affirmed. During the pendency of the appeal, the appellate court has also dismissed the application filed by the plaintiff under Order 41, Rule 27 C.P.C. for placing on record certain documen
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