The need for cancellation of the sale deed before granting relief and the presumption of possession based on revenue records.

Heard Sri Sunil Kumar, learned counsel for the petitioner and Sri Rahul Sahai and Sri Manoj Kumar Tiwari leaned counsel for the respondent.

2. Petitioner is defendant in O.S. no.7 of 2012 Om Prakesh Vs. Gulab. Trial court/Civil Judge (J.D.) Sardhana, district Meerut through order dated 13.3.2012 granted temporary injunction to the plaintiff and restrained the defendant from interfering in the possession of the plaintiff over the land in dispute detailed at the foot of the plaint till the disposal of the suit. Against the said order petitioner filed Misc. Appeal no.45 of 2012. A.D.J. Court no.10, Meerut dismissed the appeal on 3.12.2012, hence this writ petition.

3. Property in dispute is agricultural land total area of which is about half hectare. According to the plaint case since before 1999 defendant was owner (bhoomidhar with transferable right) of the property in dispute; on 17.11.1999 he sold the property in dispute through registered sale deed to late Sri Ram Bhajan and Ram Bhajan, thereafter, executed registered agreement for sale in favour of the plaintiff on 1.2.2001. It was further pleaded in the plaint that Ram Bhajan became seriously ill after execution of the agreement for sale and could not execute the sale deed hence he executed an unregistered will in favour of the plaintiff on 23.5.2001 and plaintiff was in possession since before that. In para 3 of the plaint it was alleged that Ram Bhajan died on 4.7.2001 and thereupon plaintiff became owner of his property. It was further stated that about 20 years before the area where land in dispute is situate had come within the limits of Nagar Nigam.

4. Defendant petitioner pleaded that Ram Bhajan was member of Scheduled Casts hence he could not execute sale deed in favour of the plaintiff. Defendant petitioner further asserted that for cancellation of the sale deed dated 17.11.1999 which was shown to be executed by him in favour of Ram Bhajan he had filed O.S. no.937 of 2012 Gulab Vs. Ram Bhajan.

5. It has been stated by learned counsel for the petitioner that in the said suit in which petitioner is plaintiff, he has filed substitution application seeking substitution of legal representatives of Ram Bhajan. Copy of the same has been supplied. It is very strange that in the substitution application it is mentioned that from service report petitioner (plaintiff of the said suit) came to know that Ram Bhajan had died ten years before filing of the suit i.e. on 4.7.2001 (the same date which is mentioned by respondent, plaintiff of the suit giving rise to the instant writ petition. Three sons of Ram Bhajan have been sought to be substituted at his place by the said substitution application.

6. The courts below held that suit for cancellation of the sale deed of 1999 had been filed by the defendant petitioner after 10 years while the limitation for such suit is 3 years. Courts below also held that in the agreement for sale executed by Ram Bhajan in favour of the plaintiff on 1.2.2001 delivery of possession was not shown. The court below particularly the lower appellate court held that unless the sale deed of 1999 executed by defendant petitioner in favour of Ram Bhajan was cancelled in the suit filed by him, no relief could be granted to him and he could not be deemed to be in possession. In para 7 of the judgment of the lower appellate court argument of the defendant petitioner was noticed that after the death of Ram Bhajan plaintiff filed mutation application before the revenue court but that was rejected.

7. As far as the question of validity of the will is concerned it can be raised only by natural legal representative of Ram Bhajan and not by the petitioner. Court below also held that after inclusion of the area in the Nagar Nigam U.P.Z.A. & L.R. Act ceases to apply. No provision in this regard has been quoted.

8. It appears that in the revenue record name of defendant petitioner is continuing, however, the courts below particularly lower appellate cou