JAGDISH RAI Vs. MAKARDHWAJ RAM

JUDGEMENT

(1.) By this appeal, the appellant has challenged the legality and propriety of the judgment & decree dated 28.6.1994 passed by the Additional District Judge, Jashpurnagar, in Civil Appeal No.16 A/90 affirming the judgment & decree dated 7.5.93 passed by the Civil Judge Class-II, Jashpurnagar, in Civil Suit No.195A/87 whereby learned Civil Judge Class-II has decreed the suit for declaration and possession in favour of respondent No.1 on the basis of sale deed dated 27.7.1960 executed by deceased Mahabir Rai in favour of respondent No.1 and Rupjhari.

(2.) Brief facts leading to filing of this appeal as per pleading, the property in dispute was owned by Gokul Rai. He died leaving behind his son Baldeo and daughter Dhanmati. Smt.Raj Mohani @ Rupjhari was wife of Baldeo. Mahabir was son of Baldeo and Smt.Gulmat was concubine of Mahabir. Present respondent No.1 Makardhwaj Rai is son of Mahabir. Rambhajan was son of Dhanmati and the present appellant is son of Rambhajan. As pleaded by respondent No.1, on 27.7.60 deceased Mahabir Rai executed sale deed of 95.80 acres of the land in favour of respondent No.1 & deceased Rupjhari. On 23.4.1962, deceased Mahabir Rai, deceased Raj Mohani @ Rupjhari and Smt.Gulmat executed General Power of Attorney in favour of deceased Rambhajan. Lastly on the ground that they were not satisfied with the activity of Rambhajan, they cancelled their General Power of Attorney vide cancellation deed dated 25.6.69. Rambhajan executed sale deed of 21.43 acres of the land in favour of Premprakash Rai vide sale deed dated 17.1.69 and also executed sale deed dated 4.2.69 in favour of Chandar Sao. Name of Chandar Sao was mutated in the revenue record. Rest properties were in the name of Rupjhari and plaintiff Makardhwaj Rai. In the year 1985, Rambhajan applied for mutation of the land. His application was rejected. Finally, in the year 1986 his name was mutated. Present respondent No.1 has fled suit for declaration of title and possession of the disputed property. During life time of Rambhajan, he has contested the case and pleaded that Makardhwaj Rai is not son of Mahabir. Disputed property has not been sold vide sale deed dated 27.7.60 and Smt.Gulmat was not wife of Mahabir. She was concubine. Mahabir died as issueless. Only Rambhajan was the owner and possessor of the property.

(3.) Father of the appellant/original defendant No.1 has pleaded in his written statement that previous suit was not based on the sale deed, therefore, subsequent suit on the basis of sale deed is barred under the principle of res judicata.