BARATKUNWAR Vs. DULAR SINGH

JUDGEMENT

(1.) The appellant/defendant No.1 has filed the Second Appeal under Sec. 100 of the Code of Civil Procedure, 1908 being aggrieved by the judgment and decree dtd. 31/1/2009 passed by learned Additional District Judge Sarangarh, District Raigarh in Civil Appeal No. 18-A/2006 affirming the judgment and decree dtd. 2/12/2003 passed by the F Civil Judge, Class-2, Sarangarh, District Raigarh, in Civil Suit No. 24-A/2002.

(2.) This appeal was admitted on 9/10/2015 by this court on the following substantial question of law.

(3.) The brief facts as reflected from the records are that the plaintiffs filed a civil suit before Civil Judge, Class II, Raigarh for declaration of title, possession and declaration that subsequent judgment and decree passed in Civil Suit No. 8A/1987 dtd. 26/10/1993 is not binding upon the plaintiff mainly contending that the plaintiffs and defendants No. 1 to 4 belong to one family and genealogy tree was also described in the plaint. It has been contended that the land bearing Khasra No.29 area 18.20 dismil, situated at village Timralaga, Patwari Halka No.28, Tahsil Sagangarh, District Raigarh is jointly owned by the plaintiff's father Chhotelal and elder uncle Jhaduram. The plaintiffs' uncle died in the year 1973, therefore, legal representatives namely defendants No.1 and 2 have taken the land in their possession. The partition between the plaintiffs' father and father of defendants No. 1 and 2 has taken place prior to 50 years, according to their partition, they are in possession of their respective shares, though partitions were taken place in the year 1979, the properties were recorded jointly in the revenue record. It has been further contended that after partition, plaintiffs' father is in possession of the suit property, he died prior to 12 years, therefore, being legal representatives of their father, they are utilizing the land and doing the agricultural work. They are in possession of the suit property peacefully. The suit property has been described in Schedule-A of the plaint. The defendant No.2 after partition with plaintiff's father prior to 1979 was already separated after taking his share which has been described in Schedule-C of the plaint and executed sale deed on 14/8/1978. It has been contended that after partition of plaintiffs' father Chhotelal and defendants No. 1 and 2 property which has been given to defendant No.4 has been adjusted by the defendants No.1 and 2 in their account. It has also been contended that after partition, the defendants No.1 and 2 have sold the property to defendant No.3 who is wife of defendant No.2, fraudulently separated revenue records and presently the defendants No. 1 and 2 are having less property in the land account.