SHANKAR SHAMBHU RAJWAR Vs. SARIHANO SHAMBHU RAJWAR

JUDGEMENT

(1.) This second appeal has been preferred by the appellants/defendants under Sec. 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dtd. 6/2/2021 (Annexure-A/1) passed by Second Upper District Judge, Ambikapur Distt. Surguja (CG) in Civil Appeal No.22-A/2019, setting aside the judgment and decree dtd. 16/1/2019 (Annxure-A/2) passed by First Additional Judge to the Court of First Civil Judge Class-II, Ambikapur, Distt. Surguja, in Civil Suit No.1-A/2017, whereby the suit filed by respondent No.1/plaintiff for declaration of title and possession, has been dismissed. Learned first appellate Court allowed the civil suit of the plaintiff declaring her 1/4th share on the suit property of Schedule B entitling her to get possession after getting partition of it. (For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court)

(2.) Facts of the case, in brief are that plaintiff filed civil suit for declaration of title and possession stating inter alia that, land mentioned in Schedule 'A' annexed with the plaint is self acquired property of her great grand father Bahoran Rajwar and the land mentioned in Schedule 'B' (hereinafter called as 'the suit land') is the part of the land mentioned in Scheduled 'A'. The plaintiff is daughter of late Shambhu, who was grand son of late Bahoran Rajwar. Late Shambhu had two wives; the plaintiff is daughter of first wife of Shambhu namely Kuteli and defendants 1 & 3 are son and daughter of second wife of Shambu namely Boudhi. Therefore, being children and second wife of Late Shambhu, the plaintiff and defendants 1 to 3 are entitled to get equal share of the suit land. It is further averred that, apart from the above suit land, Late Shambhu Rajwar also had agricultural land in village Kanthi and after his death the land situated in Kanthi was transferred in the name of the plaintiff along with the defendants as co-sharers. The plaintiff is living in village Kanthi and earning her livelihood by farming on the land inherited from her father. It is further contended that defendant No.1 in collusion with the revenue officials, fraudulently got his and his mother's name mutated in the revenue record of the suit land by claiming himself to be the only successor/son of late Shambhu. The plaintiff first came to know that her name has not been recorded in revenue record of the suit land in November 2014 and thereafter she submitted an application before the Naib Tehsildar, Lundra for getting her name recorded, but the Naib Tehsildar rejected her application on the ground that the application was submitted after 19 years of the mutation, whereas the earlier mutation was passed without the knowledge of the plaintiff and without informing her, which is illegal and void against the title of the plaintiff. The plaintiff also requested the defendants to record her name in the revenue record of the suit land and give partition of her share, but the defendants refused to get recorded her name and give partition. Hence, she filed civil suit for declaration of title and possession.

(3.) Defendants 1 to 3 filed their written statement denying the pleadings made in the plaint and contended that the plaintiff has no title and possession over the suit land mentioned in Schedule 'B'. The suit land has been continuously in the possession of defendants No. 1 and 2 since 1996. Late Shambhu Rajwar during his lifetime before the year 1996, had got the plaintiff married to Sukhram Rajwar of village Chatirma, hence the plaintiff is not the owner of the suit land mentioned in Schedule 'B'. It was further contended that the plaintiff has received sufficient land in village Kanthi, therefore, she is not entitled to get any share of suit land. The plaintiff was aware of the fact that names of defendants No. 1 and 2 have been recorded in the revenue records of the land mentioned in Schedule 'A' and 'B' in the year 1996 itself, however, she did not challenge the mutation order in any competent court. After 19 years of the said mutation, the plaintiff submitted an application before Naib Tehsildar Lundra, challenging the mutation and the same was rejected on the ground of barred by limitation. Therefore, civil suit filed by the plaintiff is liable to be rejected.