HARI RAM SAHU Vs. BED RAM SAHU

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred by Defendant No.1- Hari Ram under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (for short 'the CPC') questioning the propriety of the order dated 29.02.2020 passed in Civil Suit No.20-A/2019 whereby, the learned trial Court has allowed the application filed by the Plaintiff- Bed Ram Sahu under order 39 Rules 1 & 2 of the CPC. The parties to this Appeal shall be referred hereinafter as per their description in the Court below.

(2.) Briefly stated, the facts of the case are that the Plaintiff- Bed Ram Sahu instituted a suit claiming declaration of title and injunction submitting inter alia that the land in question admeasuring 7.2170 hectares described in Plaint Schedule - 'A' situated at village Kesla, Tehsil - Nawagarh, District - Janjgir Champa and the house in question constructed over Khasra No. 854/2 area 0.1130 hectares as described in Plaint Schedule - 'B' are the ancestral properties and were recorded in the joint names of him and his brother Kala Ram. According to the Plaintiff, the said Kala Ram died on 09.04.2019, while his wife Ganga Bai on 23.04.2019 issueless and after their sad demise, revenue papers were muted in his name. Further contention of the Plaintiff is that Defendant No. 1 - Hari Ram, while claiming to be the legatee of said Ganga Bai based upon the Will dated 10.04.2019, succeeded to get the revenue papers mutated along with the Plaintiff on 08.11.2019 and by taking undue advantage of it, started interfering in his peaceful possession by threatening to cut the crops sown by him. The Plaintiff has, therefore, been constrained to institute the suit in the instant nature along with an application enumerated under Order 39 Rules 1 and 2 CPC praying for issuance of temporary injunction against the said Defendant from interfering in his peaceful possession pending decision of the suit.

(3.) While contesting the claim and by filing the reply to the said application, a counter claim has been raised by Defendant No.1 by submitting therein that the alleged ancestral properties have got partitioned around 40-42 years ago between the Plaintiff and his brother Kala Ram, who, in turn, had executed the registered deed of Will on 19.08.2017 in favour of his wife Ganga Bai bequeathing all his movable and immovable properties of village Kesla. It is pleaded further that said Ganga Bai has executed a deed of Will on 10.04.2019 in his favour whereby, she bequeathed four acres of agricultural land, out of the share of her husband (Kala Ram), which she got by virtue of the said Will dated 19.08.2017 and the house of Kudri Tikra constructed over the area of 0.20 acres as described in Schedule - 'A' attached with the counter claim. It is pleaded further that his name was mutated along with the Plaintiff as co-owner based upon the alleged Will dated 10.04.2019 vide order dated 08.11.2019 passed in Revenue Case No.38/A-06/2018-19 by Tahsildar, Shvirinarayan. Further contention of him is that the Plaintiff's brother Kalaram, on the basis of the alleged oral partition, had initiated the partition proceedings on 14.06.2017 before the Tahsildar, Shivrinarayan registered as Revenue Case No.17/A-27/2016-17, which was, however, dismissed on 16.07.2019 owing to the sad demise of him and his widow Ganga Bai.