JUDGMENT

1. The present second appeal under section 100 of CPC has been preferred by the plaintiff/appellant against the judgment and decree dated 29.9.2009 passed by Additional District Judge, Gohad, District Bhind in Regular Civil Appeal No. 06/2009 confirming the Judgment and decree dated 19.12.2008 passed by Civil Judge, Class-II, Gohad in Civil Suit No. 44-A/2008.

2. The original plaintiff/appellant - Ramesh Singh Tomar (since dead and represented by LRs.) had filed this civil suit for permanent injunction, cancellation of sale deed dated 21.1.1987 and for declaration of judgment and decree dated 20.2.2003 passed in Civil Suit No. 91-A/95 in respect to the property admeasuring area 15x75=1125sqft situated at Gohad bearing Survey No.1144/2 (herein after referred as disputed property) as null and void.

3. For the sake of convenience Naresh (since dead and represented by Lrs) will be addressed as plaintiff, respondent no.-1 Dinesh will be addressed as defendant No.-1 hereinafter. As per the plaint pleadings the plaintiff is the owner of the said disputed property. The property was purchased after selling the ancestral property by the plaintiff as well as defendant No.1 on 26.4.1980 from one Lakhpat Singh S/o Bhagwan Singh. Hence, both plaintiff and defendant No.1 became co-owner of equal shares in that property. It is further pleaded that when the property was purchased, defendant No. 1 was minor and plaintiff was working as a driver. Thereafter, plaintiff constructed the house on the same plot. After construction, oral partition was taken place between plaintiff and defendant No.1 and plaintiff got 15x75 square feet in southern side and defendant No. 1 got 15x75 square feet in northern side. The plaintiff has been in peaceful possession of his portion since 1980. The further pleading is that the plaintiff is illiterate and addicted to consume opium for which he has valid license. Defendant No. 1 took the advantage of this habit and got executed the sale deed dated 21.1.1987 in his favour by fraud in shadow of registration of partition deed after feeding a lot of liquor to plaintiff. Plaintiff knew about this fact only in the year 1995 when the earlier civil suit was filed. The cause of action arose in the year 2003 when he came to know about the execution proceedings started in earlier civil suit. Thereafter, the present civil suit is filed for the aforesaid relief as referred above.

4. Respondent No.1/defendant No. 1 filed written statement denying the averments of plaint and pleaded that he is the owner of disputed property on the basis of sale deed dated 21.8.1987 executed in his favour by the plaintiff. It is further pleaded that the wife and children of the plaintiff had filed a civil suit bearing No. 91-A/95 and in that suit defendant No. 1 filed cross objection for recovery of possession. The Civil Suit No. 91-A/95 decreed in favour of defendant No. 1 by judgement and decree dated 20.2.2003, thereafter, the plaintiff of that civil suit, filed appeal, however, the appeal was also dismissed. The judgement and decree passed in Civil Suit No. 91-A/95 was affirmed in second appeal by the High Court. On 7.4.1996 plaintiff and his wife forcefully encroached upon the disputed property. The execution of decree passed in civil suit No. 91-A/95 is still pending. Plaintiff has no cause of action, this suit is malafidely filed, therefore, the same be dismissed with costs.

5. On the basis of the aforesaid pleadings, the learned trial Court framed as many as eight issues in the matter and parties lead evidence to prove the said issues in their favour. The learned trial Court after appreciation of the evidence made available on record, vide its judgment and decree dated 19.12.2008 dismissed the suit filed by the appellant/plaintiff.

6. Being aggrieved by the aforesaid judgment of the trial court, the appellants/plaintiffs preferred First Civil Appeal No.06/2009 before the Additional District Judge, Gohad, District Bhind who also dismiss