Point of Law : Both courts erred in holding that once mutation proceedings are over with no objections from defendant-appellants, they are estopped from questioning the validity of sale deed dated.

JUDGMENT :

1. By the present second appeal, appellants are challenging the judgment and order dated 24.04.1995 passed by the learned Additional District Judge, Karvi in Civil Appeal No. 5 of 1990 (Babu Khan and others vs. Atul Prakash) and judgment and order dated 30.04.1990 passed by learned Munsif-Magistrate, Karvi, Banda in Original Suit No. 79 of 1988 (Atul Prakash vs. Babu Khan and others).

2. The suit was filed by the plaintiff-respondent Atul Prakash for cancellation of sale deed dated 28.04.1988 executed by defendant-appellant nos. 1 to 3 in favour of defendant-appellant nos. 4 to 8 and for permanent injunction restraining the defendants-appellants from raising any construction or interfering in possession of the plaintiff over the property in dispute. The Trial Court at the very initial stage, on 16.05.1988, granted an injunction order restraining the defendants-appellants from creating any hindrances. The suit was decreed and the appeal against the same was dismissed.

3. Brief facts of the case are that Rustam Khan was the owner of the property in question. He, unfortunately, died in the year 1964 leaving behind his widow and five sons, namely, Ramzan Khan (eldest), Nazir Khan, Babu Khan, Chand Khan and Nasim Khan. The widow of Rustam Khan also died sometime later, after which Ramzan Khan the eldest of the siblings took care of the interests of the brothers, who were all minors at that time. Ramzan Khan and Nazir Khan executed sale deed dated 28.07.1977 of the property in dispute on their behalf as well as in their capacity as de-facto guardian on behalf of remaining three minor brothers (first set of defendant-appellant) in favour of plaintiff-respondent. By entry dated 13.10.1982, name of the plaintiff-respondent was duly mutated in the revenue records and no objections against the same were filed by defendant-appellants first set, even after attaining majority. In 1987, on becoming major, defendant-appellant No. 1 and 2 filed a suit under Section 229B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, [Hereinafter referred to as the “U.P. Z.A. & L.R. Act”] challenging the sale deed dated 28.07.1977. Written statements were also filed. However, during the pendency of the said suit, defendant-appellant first set executed a sale deed dated 28.04.1988, for the sale of their share in the property in question, in favour of the second set of defendant-appellants (some of them have been substituted by their legal representatives in the proceedings). They also permitted the proceedings initiated under Section 229-B to be dismissed for non-prosecution. Respondent herein filed the present Original Suit No. 79 of 1988 against both sets of appellants praying for cancellation of the said sale deed dated 28.04.1988 and for relief of permanent prohibitory injunction restraining defendants-appellants from interfering in his peaceful possession over the property in question. The suit was filed on the ground that the demised property was already sold by defendant-appellant first set in favour of plaintiff-respondent by sale deed dated 28.07.1977. The suit was decreed in favour of the plaintiff-respondent. Aggrieved by the judgment and decree dated 30.04.1990, defendants-appellants filed a first appeal, which was also dismissed on 24.04.1995. Thus, they preferred present second appeal.

4. Learned counsel for the appellants assails the judgment of both Courts on the ground, that, Ramzan Khan being a brother was not legal or de-jure guardian of defendant-appellant first set under the Mohammedan law, therefore, the sale deed dated 28.07.1977 executed by him for the sale of shares of his minor brothers is void. Since the sale deed dated 28.07.1977 is void to the extent of the shares of the defendant-appellant first set, therefore ignoring its consequences, defendant-appellant first set could legally execute the sale deed dated 28.04.1988 in favour of defendant-appellants second set for sale of their shares in the property.