TULSI (DIED) THROUGH LRS Vs. ASMOUTIN BAI

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff under Sec. 100 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the judgment and decree dtd. 13/4/2012 passed by the Additional District Judge, Balod, District Durg (C.G.) in Civil Appeal No.117-A/2011, whereby, the learned appellate Court, while affirming the judgment and decree dtd. 25/9/2009 passed by the 1st Civil Judge, Class-2, Balod in Civil Suit No.33-A/2008, has dismissed the appeal. The parties to this appeal hereinafter referred as per their description before the Court below

(2.) The facts, which are essential for adjudication of this appeal, are that a suit for declaration of title and injunction was made by the plaintiff " Tulsi with regard to the property in question bearing Kh.No. 127 admeasuring 0.22 hectares (0.55 acres) situated at village Bohradeeh, Tahsil Gurur, District Durg. According to the plaintiff, the properties described in plaint para 6 were partitioned by his father Bisambhar and both the plaintiff and defendants are in their respective possession as per the partition effected by his father and, in so far as the property in question is concerned, it was also given to him in partition as he was living separately from his father and is continuously in possession thereof. It is pleaded further that after the death of his father, the plaintiff has obtained the revenue papers mutated in his name as per the order passed by the Tahsildar Gurur on 11/2/2004. Further contention of him was that the mutation order as passed in his favour on 11/2/2004 was reversed by the Sub-Divisional Officer, Balod vide order dtd. 25/10/2005 in Appeal preferred by the defendants in Appeal Case No.29-A-6/2003-04 and, was affirmed further by the Additional Collector, Durg vide order dtd. 31/10/2008 in Revenue Appeal No. 21/A-6/2006-07 and while taking undue advantage of it, the defendants started interfering in his peaceful possession, which compelled him for the institution of the suit in the instant nature.

(3.) The aforesaid claim was contested by the defendants and the specific plea so made by the plaintiff that the property in question has fallen in his share was denied specifically in their written statement. According to them, although the properties described in plaint para 6 were partitioned as such, but in so far as the property in question, i.e., Kh.No.127 admeasuring 0.22 hectare is concerned, the same was, however, retained by father for his livelihood.