DIGAMBER PRASAD GUPTA Vs. DAYANAND GUPTA AND OTHERS

JUDGEMENT

(1.) By this second appeal under Section 100 of the Code of Civil Procedure, 1908, the appellant has challenged the legality and propriety of the judgment and decree dated 10.1.2002 passed by the Additional District Judge, Jashpur, in Civil Appeal No.01-A/2001 dismissing the appeal filed on behalf of the appellant/plaintiff against the judgment and decree dated 22.12.2000 passed by the First Civil Judge Class-I, Jashpurnagar, in Civil Suit No.4-A/93, whereby learned First Civil Judge Class-I has dismissed the suit for declaration of title, partition and possession of the suit land situated at village Bagicha, then district Raigarh presently district Jashpur.

(2.) For decision of the second appeal, following substantial question of low has been formulated vide order dated 25.8.2005:-

(3.) As per pleading of the parties, the appellant and respondent No. 1 are sons of late Madhav Prasad. Respondents No.2 to 6 are sons of respondent No. 1. Respondent No.7 (original No.2 Saraswati Devi), sister of the appellant/plaintiff, has also made party during pendency of the suit. As per pleading of the appellant/plaintiff, the appellant was residing at Bagicha, at the instance of his father Madhav Prasad. Parties are Hindus and are governed by the Hindu Law. Madhav Prasad has received property on succession and he died on 6.2.1985. After death of Madhav Prasad, land was recorded in the name of the appellant/plaintiff and respondents No. 1 to 6 and his mother deceased Smt. Mansha Bai. On the basis of one deed termed as 'Vyavasthapatra' dated 11.12.84, respondents No.1 to 6 have applied for mutation before Revenue Court and name of respondents No. 1 to 6 and mother of the plaintiff were mutated behind the back of the appellant/plaintiff without any notice to him, then he preferred an appeal before the Sub Divisional Officer. The Sub Divisional Officer reversed the order of the Tahsildar vide order dated 17.9.1985 and finally application for mutation filed by respondents No.2 to 5 was rejected. As per pleading of the appellant/plaintiff, 'Vyavasthapatra' dated 11.12.84 is genuine and is forged. Executor of 'Vyavasthapatra' dated 11.12.84 was mentally and physical sound and he was in position to execute any document voluntarily.