L.N. Mittal, J.
CM No. 12274.C of 2009
1. Allowed as prayed for.
CM No. 12275.C of 2009
2. For reasons mentioned in the application which is accompanied by affidavit of counsel, delay of 13 days in refiling the appeal is condoned.
RSA No. 4029 of 2009
3. Plaintiffs having lost in both the courts below have filed the instant second appeal.
4. Plaintiff-appellant No. 1 is Parjapati Braham Kumari Ishuariya Vishwa Vidhyalaya (Branch at Rewari) whereas plaintiff-appellant No. 2 Kumari
Anokhi Sharma was incharge of the Rewari branch of plaintiff No. 1. The plaintiff alleged that the suit property measuring 1 kanal along with two
rooms and boundary wall was purchased by the plaintiffs vide sale deed dated 28.1.1992 for Rs. 1,10,000/-. The defendant is follower of plaintiff
No. 1. Accordingly, 5% share in the suit land was allocated to defendant and remaining 95% share was of the plaintiffs. However, the defendant
wrongly got recorded in the sale deed that he has 95% share and plaintiffs have 5% share only. The plaintiffs, therefore, sought declaration that
they are owners in possession of 95% share in the suit land and recital in the sale deed that defendant is owner of 95% share and plaintiffs are
owners of 5% share are wrong. The plaintiffs also sought permanent injunction.
5. Defendant controverted the plaint allegations and inter alia, pleaded that he purchased the entire suit property and paid entire sale consideration
but 5% share in the suit property was recorded in the name of plaintiff No. 2 to enable her to manage the suit property in a better way on behalf of
plaintiff No. 1. Various other pleas were also raised.
6. Learned Additional Civil Judge (Senior Division), Rewari vide judgment and decree dated 26.11.2004 dismissed the plaintiffs'' suit. First appeal
preferred by the plaintiffs as well as cross-objections preferred therein by defendant-respondent stand dismissed by learned Additional District
Judge, Rewari vide judgment and decree dated 8.1.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal.
7. I have heard learned Counsel for the appellants and perused the case file.
8. Plaintiffs have miserably failed to prove the source of sale consideration for the purchase of suit property. On the other hand, there is ample
documentary evidence to prove that the sale consideration was paid by the defendant. He withdrew Rs. one lac from his Bank on 23.1.1992. The
said amount was deposited in the Bank account of plaintiff No. 2 and Virender Kumar on 24.1.1992 and was withdrawn on the same day and
was paid as sale consideration on 28.1.1992 at the time of sale deed. It is thus, apparent that the sale consideration came from the defendant and
not from the plaintiffs.
9. In addition to the aforesaid, plaintiff No. 2 has not even stepped into witness box and therefore, adverse assumption arises against the plaintiffs.
Virender Kumar appeared as attorney of plaintiff No. 2 but he could not answer relevant questions in the cross-examination. Moreover, attorney
could not be a good substitute as witness for plaintiff No. 2 as facts were in the personal knowledge of plaintiff No. 2.
10. Besides it, plaintiff No. 2 is signatory to the sale deed. She is literate lady. Consequently, it cannot be said that she had purchased 95% share.
It may be added that the sale deed was in the name of plaintiff No. 2 in her personal capacity to the extent of 5% and it is not in the name of
plaintiff No. 1-Institution.
11. Suit is also time barred as the suit was instituted on 8.5.1995 to challenge sale deed dated 28.1.1992 i.e. more than three years after the
execution of the sale deed to which plaintiff No. 2 herself is a party.
12. Many other reasons in addition to the reasons recorded hereinbefore have also been detailed by the courts below to non-suit the plaintiffs.
There is concurrent finding by both the courts below. The said finding is based on proper appreciation of evidence and is supported by detailed
reasons. The said finding is not shown to the perverse or illegal so as to warrant interference in the second appeal. No question of law much less
substantial question of law arises for determination in the instant second appeal. The appeal is completely devoid of merit and is dismissed in limine.
