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Another suit (55/2005) had also been filed by the plaintiff - Sriniwas Jhanwar against the defendants with the prayer that:-

(13 of 118) [CFA-192/2010] (1). Lease deed executed by Durgadutt in favour of Hanuman bux dated 09.01.1985 may be declared void ab initio and non effective and/or Plaintiffs may be declared as owner of disputed property and godowns which is mentioned in para 12 of the plaint and/or defendant no. 2 and 3 may be declared tenants of plaintiffs; (2). Civil suit No. 34/94 dated 2.6.1994, Civil Execution Case No. 2/94 (Hanuman Bux Vs. Firm Dhanraj Dev Kishan & Ors) and other proceedings may be declared void ab initio and non effective against the rights of plaintiffs;

and all the proceedings taken by the different defendants against the rights & interests of the plaintiff may be declared as without jurisdiction, null & void and in-operative because they have been initiated with collusion, fraud and under conspiracy.

By filing written statement to the suit aforesaid, the defendant No.1 had denied the pedigree of Nathmal, as mentioned in the plaint. It had been averred by the defendant No.1 that the only son of Onkardutt is Durgadutt, neither Gyanprakash is the (14 of 118) [CFA-192/2010] son nor Asha is the daughter; Surji devi was not the wedded wife of Onkardutt; Durgadutt had not executed the trust-deed; Onkardutt had no right to form the trust to regulate the properties and, therefore, the said trust is void ab initio. Gyanprakash had never been in possession of the properties in question and he is not the owner of the properties; actual possession over the properties in question is with the defendants No. 2 and 3 which is maintained; lease-deed and decree in favour of Hanuman Bux is not ab initio void; Durgadutt had given the shop and godown on 09.01.1985 through a registered lease-deed for a period of 99 years to Hanuman Bux by executing the lease-deed and Durgadutt had recovered the rent of the property and Hunuman Bux had recovered the total rent from the defendants No. 2 and 3; Hanuman Bux had got in his favour and against the defendants No. 2 and 3, a decree by filing Suit No. 34/1994 "Hanuman Bux Vs. Firm Dhanraj Dev Kishan" from the Court of Civil Judge, Bikaner on 02.06.1994 and pursuant to the execution proceedings, Hanuman Bux got the possession. Therefore, the present suit may be dismissed. By amending para No. 37-A, Durgadutt is the only son of Onkardutt and after death of Onkardutt, he became the owner of the properties in question and he had given the properties in question to the defendant No.1 on lease; Durgadutt had adopted a son and, therefore, the said trust- deed is ab initio void and for this reason, the sale-deed in favour of the plaintiff is also void; plaintiffs had no right to challenge the lease-deed executed in favour of the defendant No.1, therefore, suit may be dismissed.

(36 of 118) [CFA-192/2010]
(i) The lease deed executed on 09.01.1985 may be declared ineffective, void ab initio and null & void up to the extent of plaintiff;
(ii) For declaration that the plaintiffs are owner of defendants no.2 & 3 for the rented shop and godown;
(iii) The decree passed in Civil Suit No.33/94 (Hanuman Bux Vs. Firm Dhanraj Devkishan and Others) by the Civil Judge (Senior Division), Bikaner dated 02.06.1994 and all the proceedings of Civil Suit No.2/94 shall be declared void ab initio, null and void.

In support of the contentions for Civil First Appeal Nos. 197/2010, 240/2010 and 206/2010, learned counsel for the respondent-plaintiff further relied upon the following judgements:-

1. M/S Umed Realators, Wani, District Yavatmal & ors. vs Smt.Sobha wd/o Mahadeo Dehpande & ors.(supra) As per the case cited by learned counsel for respondent-

plaintiff it has been held that a document which is treated to be void ab initio, can be ignored at nullity and it is not necessary to have the same set aside on the other hand in the present case the Lease deed dated 09.01.1985 in favour of Hanuman Bux by Durgadutt cannot be said void as the creation and execution of the trust deed dated 22.09.1973 is in question and not been proved.