GANESH RAM Vs. DHANNULAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 11.5.2001 passed in Civil Suit No. 16-A/1999 by the District Judge, Rajnandgaon (C.G) whereby the plaintiffs suit for declaration of title, possession and damages has been dismissed.

(2.) THE plaintiff filed a suit for declaration, possession and damages in relation to the two suit houses described in Schedule A & B of the Plaint. He further prayed that the registered sale deed dated 04.11.1987, executed by Phoolbasa Bai (original defendant no. 1 who died during the pendency of the suit) in favour of defendant no.5, which relates to some portion of suit house, be declared illegal, void and not binding on him.

(3.) ACCORDING to the plaint allegations the suit properties were the self acquired properties of Shiv Ram, who died in the year 1932. He was having two issues namely Sumitra Bai (daughter) and Chhatrapati (son). Sumitra Bai was called by Shiv Ram to live in his house and she was through out residing with her father and was looking after his properties. The further allegations are that Phoolbasa Bai, the original defendant no. 1 was not the married wife of Chhatrapati as she was living as a concubine alongwith him because his married wife had left his company. The son bom out of relations of Chhatrapati and Phoolbasa Bai anmely Mannulal died unmarried on 14.4.1967. Chhatrapati also died in the year 1945. From the wedlock of Sumitra Bai and her husband, there were two issues namely Shyamlal and Radha Bai. The plaintiff is son of Shyamlal and there are also three daughters of Shyamlal who are shown in the pedigree. The plaintiff mainly based his claim on the ground that since Sumitra Bai was called by her father, and was through out living alongwith him till his death in the year 1932 and was in exclusive possession of the suit houses even after 1932 till the year 1976 (till her death), she has perfected her title by way of adverse possession excluding right and interest of all other successors if any. About Phoolbasa Bai, he based his claim on the ground that she was not the validly married wife of Chhatrapati, therefore, she was having no right of interest in the suit properties. It was further pleaded that Phoolbasa Bai executed a sale deed of certain portion of suit property in favour of defendant no.5 on 04.11.1987 i.e., during the pendency of the suit, therefore, the sard sale deed would be void, inoperative and not binding on the plaintiff as Phoolbasa Bai was having no right or authority to execute such a document because she was not the owner of the property. More over, this document shall be subject to decision of the rights and ownership of Phoolbasa Bai as the same was executed during the pendency of the suit. After disclosure of the fact in the joint written statement about a will deed dated 18.8.1977, said to have been executed by Phoolbasa Bai in favour of respondents no. 1 to 4, it was pleaded by the plaintiff that the said will deed was a fraudulent document. He challenged the legality of will on many grounds including the right and authority of the executant to execute such a document.