The appellate court found that the trial court erred in cancelling the sale deed and agreement to sell, as the defendant proved ownership and possession, while the plaintiff's claim of adverse possession was unsubstantiated.

Judgment :

(NARENDRA SINGH DHADDHA, J.)

The Civil First Appeal has been by the defendant-appellant (for short ‘the defendant’) under Section 96 read with Order 41 Rule 1 CPC against the judgment and decree dated 10.04.2002 passed by the Additional District Judge, Malpura (District Tonk) (for short ‘the trial court’) in Civil Suit No.01/96 (“Khanga Ram Vs. Ram Lal & Ors.”), whereby the trial court cancelled the agreement to sell dated 10.05.96 and dated 11.12.95.

2. Brief facts of the case are that plaintiff-respondent No.1(for short ‘the plaintiff’) filed a suit for cancellation of sale deed dated 11.12.1995 executed by the defendant No.2 in favour of the defendant No.1 and permanent injunction. Plaintiff in his plaint mentioned that he is in possession of the land admeasuring 10 bigha of Khasra Nos.502/1/5, land admeasuring 2 bigha 10 biswa of Khasra No.502/1/24 (total admeasuring 12 bigha 10 biswa) situated in Village Chosla, Tehsil Malpura. He was cultivating the said land for the past more than 20 years. On the basis of adverse possession, he became owner of the land in question. Plaintiff in his plaint also mentioned that the defendant No.2 with mala fide intention and in connivance with the defendant(s), executed a sale deed on 11.12.1995 for sale consideration of Rs.50,000/-. The aforesaid sale deed was executed without any transfer of possession. So, the aforesaid sale deed dated 11.12.95 is illegal and deserves to be cancelled.

3. During the pendency of the suit, plaintiff filed an application under Order 6 Rule 17 read with Order 1 Rule 10 CPC before the trial court to the effect that after filing the suit on 10.05.1996, defendant No.1 had sold 2/3 part of land in question to Shri Rameshwar-defendant No.3. Aforesaid sale deed dated 10.05.96 be declared as illegal. On that basis, Shri Rameshwar was impleaded as defendant respondent No.3 in the suit by the trial court.

4. Defendant No.2-Ram Chandra filed a written statement to the effect that he had not transferred the land in question to the defendant No.1. The plaintiff had no possession over the said land. So, relief sought by the plaintiff can not be allowed. Although, before filing the written statement, defendant No.2-Ram Chandra filed an affidavit before the trial court and submitted that he was khatedar tenant of the disputed land and he had sold the said land to the defendant No.1 through registered sale deed dated 11.12.1995.

5. Defendant No.3 filed written statement and submitted that the plaintiff had no concerned with the disputed land. Defendant No.1 as well as he himself were in possession and cultivating the disputed land.

6. The trial court on the pleading of the parties, framed the following issues:-

7. To prove his case, plaintiff got himself examined as PW-1 and got examined Goru Singh as PW-2, Bhanwar Lal as PW-3, and to prove their case, defendant No.1 got himself examined as DW-1 and got examined Ram Nanda as DW-2, Hanuman as DW-3, Gopal as DW-4.

8. After hearing both the parties, the trial court cancelled the agreement to sell dated 10.05.96 and 11.12.95 and dismissed rest of the plaintiff’s suit with regard to adverse possession and permanent injunction.

9. Learned counsel for the defendant submits that the trial court has not considered the plaintiff’s contention that he had possession over the disputed land on account of adverse possession and relief regarding adverse possession was not granted to him. Learned counsel for the defendant also submits that before filing the written statement, defendant No.2 filed an affidavit before the trial court on 30.01.1996 mentioning that he was khatedar tenant of the land in question and he cultivated the mustard crop in partnership of defendant No.1 Ram Lal. He had sold the disputed land vide registered sale deed dated 11.12.1995 to the defendant No.1 and handed over the possession of the said land to him.

10. Learned counsel for the defendant further submits that during the pendency of the suit, defendant Ram Lal