The main legal point established is that the civil court has jurisdiction to grant the relief for declaring a sale deed null and void when the recorded owner's title is not under cloud.

JUDGMENT

Lok Pal Singh, J. - Appeal from order is directed against the impugned order dated 03.03.2011, passed by Civil Judge (Sr. Div.) Dehradun in Original Suit No. 477 of 2004 whereby the trial court has decided issue nos. 3 and 4 against plaintiffs and has held that the suit of the plaintiff is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act (hereinafter referred as UPZA&LR Act) and returned the plaint to the plaintiff.

2. Factual matrix of the case are that the plaintiffs instituted the present suit on the ground that the plaintiffs were the joint owner and in possession of the suit property but due to some clerical mistake the land was recorded as Van Gram Samaj property and the management of the suit property was handed over to the Forest Department in respect of which suit no. 12/2002-03 for declaration of rights was filed in the court of Assistant Collector 1st Class, Dehradun which was decreed in favour of the plaintiffs vide judgment and order dated 19.05.2004 and the plaintiffs continue in possession over the suit property. The plaintiffs are pardanaseen and illiterate women; they appointed defendant no. 2 Sri Rakesh Khurana, their power of attorney holder to contest the suit but by misusing the power of attorney defendant no. 2 executed the sale deed dated 25.04.2004 in favour of his wife defendant no. 1. On 13.12.2001, when plaintiffs came to execute the power of attorney in favour of defendant no. 2, defendant no. 2 obtained their thumb impression on blank papers with the assurance that some applications have to be filed in the court on these blank papers. He also assured the plaintiffs that after the decision of the case, the power of attorney executed in his favour by the plaintiffs will not remain in existence. On 19.05.2004, the suit was decided in favour of the plaintiffs and their names recorded in the revenue records. After the decision of the case, they were of the impression that the power of attorney executed in favour of defendant no. 2 has elapsed but the plaintiffs received a notice from the court of Tehsildar in case no. 4214 of 2004 and case no. 4215 of 2004 for mutation then plaintiffs came to know about execution of the sale deed by defendant no. 1 in favour of his wife, namely, Smt. Suchita Khurana. Since, sale deed has been executed by defendant no. 2 by committing fraud, the plaintiffs have instituted a suit for declaration of the sale deed dated 25.04.2004 as null and void.

3. Defendants filed their written statements denying the plaint averments. They stated that the power of attorney was executed by the plaintiffs in favour of defendant no. 2 and exercising the power extended in favour of defendant no. 2, defendant no. 2 executed the sale deed in favour of defendant no. 1. It is contended that the plaintiffs have sold the property to defendant no. 1 for the total consideration of Rs. 4,75,000/-.

4. Notices were issued to the respondents and they engaged Sri Bhupesh Kandpal, Advocate but learned counsel for the respondents did not appear to argue the case on several occasions, thus this court vide order dated 28.10.2020 has observed that in the event of non appearance of the counsel on the next date, the case shall be proceeded ex-parte against the respondent. Pursuant to such order, as there is no representation for the respondent, the case was heard ex-parte.

5. Heard learned counsel for the appellant and perused the material brought on record.

6. The suit in question was instituted on 31.08.2004 for cancellation of the sale deed dated 25.04.2004 on the pretext that the plaintiffs are the recorded owner of the property in suit with transferable rights and defendant no. 2 by committing fraud and misrepresentation executed the sale deed in favour of his wife-defendant no. 1. According to the plaintiffs, it was a sham documents. In pith and substance, the case of the plaintiffs is that the sale deed dated 24.05.2004 is a null and void document having been executed b