Judgment

23/02/2021 This appeal is directed against the judgment and decree dated 3/4/2019 passed by the Addl. District Judge, Jodhpur District, whereby, the suit filed by the plaintiffs for cancellation of sale deed dated 31/12/2009 and for injunction has been dismissed.

The suit was filed by the plaintiffs inter alia with the submissions that the land ad measuring 22 Bigha 7 Biswa is situated in village Pipar City, which was ancestral property of plaintiffs and defendant nos. 2 to 9; the land was earlier recorded in the name of Ram Sukh. After the death of Ram Sukh, by mutation no. 962, the same was recorded in the name of his three sons, Kanhaiya Lal, Har Narain and Heeral Lal; the plaintiffs and defendant no.3 are children of Kanhaiya Lal and defendant nos. 4 to 6 are grand children of Kanhaiya Lal, whereas, defendant nos. 7 & 8 are daughters of Kanhaiya Lal. It was claimed that the land recorded in the name of defendant no.2 – Kanhaiya Lal, their father, was jointly owned by the plaintiffs and defendant nos. 2 to 8 being ancestral and each had 1/8th share; the property had not been partitioned and the defendant no. 2, their father, without consent from the plaintiffs and other co-tenants had transferred the entire land to defendant no.1, Hanuman Singh, on 31/12/2009, which transfer was void qua the plaintiffs and other defendants – co-tenants. It was prayed that the sale deed dated 31/12/2009 be partly cancelled to the extent of plaintiffs’ share and they be not dispossessed from the land in question.

Written statement was filed by defendant no.1 disputing the averments made in the plaint. It was indicated that the disputed land was not joint, the defendant no.2 – Kanhaiya Lal has transferred his share to him. Father of defendant no.1, Heera Lal, is co-tenant of the land in question and that the transfer is for consideration and during the life time of Kanhaiya Lal his sons &

daughters cannot seek partition and, therefore, the suit be dismissed.

Defendant nos. 2 to 8 other than defendant no.7 also filed written statement and contested the averments made by the plaintiffs.

Based on the pleadings of the parties, the trial court framed three issues. On behalf of the plaintiff, four witnesses were examined and three documents were exhibited. On behalf of the defendants, defendant no.1 appeared as D.W.1.

The trial court after hearing the parties, decided the issue no.1 & 2 together and came to the conclusion that from the Jamabandi (Ex.1 & 2), it was apparent that the land in question was standing in the name of plaintiffs’ father, Kanhaiya Lal and his brothers. Ex.1 indicated the land in the name of Ram Sukh, father of Kanhaiya Lal and Ex.2 indicated the land in the name of Kanhaiya Lal, Har Narain and Heera Lal, sons of Ram Sukh and as Kanhaiya Lal, recorded khatedar, has transferred his share to defendant no. 1 – Hanuman Singh, who is son of co-tenant, Heeral Lal and from the documents it was apparent that Kanhaiya Lal was owner to the extent of 1/3rd share, which was received by him on death of his father Ram Sukh, the same was his self acquired property and as the plaintiffs had failed to prove that the disputed land was ancestral land, Kanhaiya Lal had the right to transfer the property and, therefore, the plaintiffs were not entitled to seek cancellation of sale deed and for grant of injunction and consequently dismissed the suit.

Learned counsel for the appellants made submissions that the trial court was not justified in coming to the conclusion that the land in question was self acquired property of Kanhaiya Lal. It was submitted that admittedly the land stood in the name of Ram Sukh, grand father of plaintiffs and it was the specific case of the plaintiffs that the land initially belonged to Chotha Ram, father of Ram Sukh and as such in the hands of Kanhaiya Lal, their father, the same was ancestral in nature and, therefore, the plaintiffs had share in the suit property, which could not have been transferred by Kanhaiya