DEEPAK KUMAR MISHRA Vs. HEMLATA BHUTADA

JUDGEMENT

(1.) The instant appeal is against the judgment and decree dtd. 19/3/2018 passed by the First Additional District Judge, Raipur, in Civil Suit No.40A/2011. The suit was filed by Smt. Hemlata Bhutada, the respondent/plaintiff herein claiming possession, declaration and permanent injunction in respect of the house bearing No.134, admeasuring 17,600 sq.ft. situated at Ward No.1, Gobra Navapara, Rajim, District Raipur. The suit was decreed in favour of the plaintiff, hence this appeal by the defendants.

(2.) As per the plaint averments, Smt. Shakuntala claimed to be the exclusive owner of the suit property i.e. house No.134 admeasuring 17,600 sq.ft. which was bequeathed to her by her inlaws Banshilal, resident of Jodhpur by a registered WILL dtd. 13/1/1966, which was registered on 14/1/1966. It was stated that late Banshilal, during his lifetime, filed a suit against one late Sharda Prasad Mishra, who is father of Deepak Kumar Mishra (the appellant) bearing No.5A/1959 for possession and damages wherein the Civil Court decreed the suit on 14/3/1959 and directed that the possession of the suit premises be handed over to the then late Banshilal Gattani, who is father-in-law of plaintiff. It was further stated that the said order of ejectment was affirmed in the first appeal as also in the second appeal. According to the plaintiff, late Banshilal Gattani acquired the possession of such suit premises, which is the same in this civil suit except the room No.3 and 4 and the rest of the possession was acquired on 30/9/1963. During the passage of time, the room No.3 and 4 which was in dilapidated condition got automatically demolished and during such period Banshilal died. It is further stated the husband of the plaintiff Shakuntala namely Mulchand Gattani was not financially well, as such, he did not come to Gobra Navapara Rajim from Jodhpur. Subsequently, in the year 1982, the room No.3 and 4 was completely demolished and only debris were existing, they removed them and took possession in entirety and thereafter the boundary wall was constructed to save the property.

(3.) It is further pleaded that on 1/5/2003, the husband of the plaintiff Mulchand died and she could not come to Gobra Navapara and in 2007 some known person to her was sent to Navapara to enquire about property then she came to know that defendant No.1, the appellant Deepak Kumar Mishra have took over the possession of said premises and got his name mutated over the land and was further trying to sell out. It was further revealed that some part of the land more than around 5000 sq.ft. was sold to Smt. Meena Bai, who is defendant/appellant No.2. It was stated that by such sale and unauthorized occupation, the defendant do not get any right and title over the property; therefore, the suit was filed for declaration and for possession and permanent injunction.