BHAGWAT Vs. ROHIT KUMAR

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dtd. 17/12/2021 passed by learned Second Additional District Judge, Janjgir, District Janjgir-Champa, whereby Civil Appeal No.12-A/2021 filed by the appellant/defendants against judgment and decree dtd. 22/1/2021 passed in Civil Suit No.46-A/2015 has been dismissed.

(2.) Facts relevant for disposal of this appeal are that respondents/plaintiff filed a civil suit for declaration of title, permanent injunction and partition against appellant/defendants pleading therein that the suit property mentioned in Annexure "A" is the ancestral agriculture property of Jhadu. Jhadu died much earlier. Jhadu had three sons namely Budhram, Laxman (Laximan) and Pitambar who also died. Budhram and his wife Noni Bai had no issue, they died issueless and thus legal heirs of Laxman (Laximan) and Pitamber (brothers of Budhram) i.e. plaintiffs and respondents jointly are entitled to get share of Budhram. However, defendant No.2 -Milan claiming himself to be adopted son of Budhram, got recorded his name in revenue record of the land situated at Village- Sonaideeh bearing kh. no.84/2 area 0.809 hectare fraudulently even though Budhram and Noni Bai died issueless. In fact defendant No.2 is the son of Laxman (brother of Budhram) and in the revenue records name of defendant No.2-Milan is also recorded along with other coowners being legal heir of Late Laxman (Laximan). When in the month of May 2015, plaintiffs asked for partition of land from joint ownership, from the share of Budhram, it came to their knowledge that defendant No.2- Milan claiming himself to be son of Budhram got recorded his name in the joint ownership along with plaintiff and defendants to be son of Laxman (Laximan). It was pleaded that the suit land is ancestral property fell in the joint ownership of plaintiff and defendants. All the suit land is ancestral property. After death of Budhram, legal heirs of Pitamber (brother of Budhram) i.e. plaintiffs are entitled to get 1/2 share and legal heirs of Laxman (brother of Budhram) i.e. defendants No. 1 to 5 are entitled to get 1/2 share which fell in the share of Budhram, therefore, name of defendant - Milan be struck off from the portion of land admeasuring 0.809 hectare situated in kh. no.84/2 and the suit land be declared in the joint ownership and possession of plaintiffs along with defendant No. 1 to 5 and one half share of the plaintiffs be not sold by the defendant and possession of the plaintiff be not interfered with. It was pleaded that cause of filing suit arose when in the last week of May 2015 defendant No.2-Milan denied for partition of land admeasuring 0.809 hectare situated in kh. no.84/2 and the said land got registered by the defendant in his name secretly.

(3.) Defendants No. 1 to 5/appellants denying the plaint allegation in their written statement stated that since Jhadu's son, Budhram and his wife -Noni Bai had no children, they adopted Milan, son of Budhram's brother Laxman (Laximan), as per customs of their village and custom, when Milan was 13-14 years old and studying in the 8th class. The formal adoption process was completed on 22/5/1989. The disputed land i.e. kh, No. 84/2 (2 acres), was purchased by Noni Bai from Balchand Jain on 7/7/1979 and registered in her name and after her death in 1997 it was passed to Milan, her adopted son. The plaintiffs are well aware of this transaction of land and have never raised any objection. Defendant- Milan has the sole ownership of this land, and no other party has any rights on it. Therefore, the plaintiffs' demand for partition of this land be rejected as no one else has any claim over it. The land in question is not ancestral to the plaintiffs, and they have no legal rights over it. The plaintiffs cannot claim declaration of share as 1/2 1/2 over the 4.98 acres of total land. Only the remaining suit land of 2.98 acres, which is ancestral to Jhadu Ram, can be divided equally among his legal heirs and for joint ownership land of 2.98 acres no injunction order against the defendants can be granted.