RAMCHARAN Vs. GORELAL

JUDGEMENT

(1.) This is plaintiffs' second appeal. By way of instant second appeal under Sec. 100 of the Code of Civil Procedure, 1908, appellants / plaintiffs have challenged the judgment and decree dtd. 25/9/2004 passed by Second Upper District Judge (F.T.C.), Mungeli, District - Bilaspur [First Appellate Court] in Civil Appeal No. 9-A/2003, whereby learned first appellate Court modified the judgment & decree dtd. 17/5/2003 granted by Civil Judge, Class-I, Mungeli [Trial Court] in Civil Suit No. 46-A/97, by which, the trial Court had granted decree of perpetual injunction/permanent injunction in favour of appellants/plaintiffs in respect of all the suit lands mentioned in Schedule "A" attached with the plaint, but first appellate Court held that defendant Gorelal is having title and possession on the part of the suit land mentioned in Anusuchi -1 annexed with the written statement, thus, set aside judgment & decree granted by trial Court with regard to Anusuchi - 1 annexed with the written statement and upheld in respect of remaining portion of the suit land. [For the sake of convenience, the parties would be referred to as per their status shown in the plaint ].

(2.) The facts leading to file the instant second appeal are that plaintiffs instituted a suit stating inter alia that late Ramcharan (plaintiff No.1), Baliram & Faliram were real brothers, Radheshyam (plaintiff No. 2) is son of Baliram whereas, plaintiff No. 3 - Naini Bai (since deceased) was wife of Baliram Rathore. Faliram died 64-65 years prior to filing of civil suit. At that time, widow was not having right to get title on the land of her husband, therefore, plaintiffs were joint owner of suit land, which is joint family property and they were also having possession over the same, but wife of late Faliram namely Upkunwar was not having any right on the suit land, despite that her name was got entered in the revenue records. Upkunwar Bai died in the month of January, 1997, thereafter, her name was deleted from the revenue records, but after her death, defendant - Gorelal started claiming his right over the share of Upkunwar on suit land on the basis of Will (Ex.D-7) allegedly executed by Upkunwar Bai in his favour, whereas it is false and fabricated document. On the basis of that Will, defendant No. 1 started interfering in peaceful possession of the plaintiffs over the suit land, whereas, neither he has any right nor possession on the same, therefore, the plaintiffs filed a civil suit for grant of perpetual injunction against defendant No. 1 - Gorelal.

(3.) Defendant No. 1 Gorelal filed his written statement stating inter alia that mutual partition was effected between Ramcharan, Faliram & Baliram and after death of Faliram, his widow Upkunwar Bai inherited his share i.e. 4.03 acres of the land, got possession and cultivated the same which has been mentioned in Anusuchi -1 annexed with the written statement. It is further stated that since Upkunwar Bai was issue-less, therefore, she executed Will (Ex.D-7) in respect of the land shown in Anusuchi -1 annexed with the written statement on 23/5/1995 in favour of Gorelal, who is son of Samaru (brother of Upkunwar Bai), therefore, the plaintiffs are not entitled to get any relief, as sought for by them.