RADHESHYAM HARMUKH Vs. SITARAM HARMUKH

JUDGEMENT

(1.) This second appeal preferred by defendants No.1 and 2 / appellants herein was admitted on the following substantial question of law: -

(2.) The plaintiff filed suit for declaration of title and also for declaring that Ex.D-1 - certificate dated 20-12-1997 issued by defendant No.3 in favour of defendant No.2 and Ex.D-2 - patta dated 16-10-2001 granted by the Tahsildar in favour of defendant No.2, are null and void, as the suit property is the ancestral property which he received on partition and which took place between the plaintiff and defendant No.1 in which the defendants filed written statement stating inter alia that the suit land is Government land for which patta has been granted by the Gram Panchayat - competent authority in favour of defendant No.2 and therefore the suit is liable to be dismissed which the trial Court accepted that the suit property is not the ancestral property of the parties and it is the Government land for which patta was granted by the Tahsildar on the recommendation of defendant No.3 vide Ex.D-2, but the first appellate Court in appeal preferred by the plaintiff after having held that the suit property is not the ancestral property of the parties, proceeded to examine the validity of the said patta Ex.D-2 and held that the said patta was not granted in accordance with law and on that ground set-aside the judgment and decree of the trial Court and declared the certificate dated 20-12-1997 as null and void against which this second appeal has been preferred by defendants No.1 and 2 in which substantial question of law has been formulated and which has been set- out in the opening paragraph of this judgment.

(3.) Mr. Vinod Kumar Sharma, learned counsel appearing for the appellants herein / defendants No.1 and 2, would submit that once the suit property is held to be not the ancestral property of the parties and held to the Government property, and Ex.D-1 dated 20-12-1997 was not challenged by the plaintiff on the ground that it suffers from procedural illegality or procedural defect, it could not have been examined and the said patta could not have been declared as null and void.