DAULAT RAM Vs. SARASWATI BAI

JUDGEMENT

(1.) THIS second appeal is directed against the judgment & decree dated 10.11.95 passed by the 6th Additional District Judge, Bilaspur, in Civil Appeal No. 10-A/95, affirming the judgment & decree of dismissal of the suit for declaration and permanent injunction dated 29.9.94 passed by the 4th Civil Judge Class-I, Bilaspur, in Civil Suit No. 127-A/90.

(2.) BRIEF facts giving rise to filing of this appeal as per pleading of the parties are that the present Appellant/Plaintiff is the son of Respondents No. 3 and 4. Respondent No. 1 is the daughter of Ghasiram. The suit land admeasuring 2.80 acres is situated at Village Baima, district Bilaspur. Respondent No. 3 (father of the Appellant) has sold ancestral property without any legal necessity of the family. The property in dispute has been purchased by Ramnarayan Dubey, maternal uncle of the Appellant in the name of the Appellant/Plaintiff and his elder brother Bansidhar who died in the year 1975 and at the time of the alleged purchase, the Appellant/Plaintiff was minor and he was in possession of the property and Respondent No. 3 (father of the Appellant) has sold the suit land to Respondent No. 1 in the year 1970 without any legal necessity for the Appellant/Plaintiff or for other members of Joint Hindu Family. In alternate, Respondent No. 3 has mortgaged the property by executing the deed dated 6.6.70 in form of sale deed without any permission from the competent Court, but name of Respondent No. 1 has not been mutated. Proceeding under Section 145 of the Code of Criminal Procedure, 1973 (in short 'the Code') was also initiated, but the present Appellant is still in possession of the property. The Appellant/Plaintiff has claimed the relief that the sale deed executed by Respondent No. 3 in favour of Respondent No. 1 be declared as null and void and permanent injunction be granted simultaneously and it be declared that the Plaintiff is entitled for redemption of the mortgage. Mother of the Appellant/ Plaintiff has also filed suit bearing Civil Suit No. 86-A/88 before the 1st Civil Judge Class-I, Bilaspur and the Plaintiff is competent to file suit before the competent Court.

(3.) FOR decision of this appeal, following substantial questions of law have been formulated vide order dated 28.11.96: