MOHD YUNUS Vs. DEVJANI

JUDGEMENT

(1.) The petitioners (defendants 1 to 4 and 6 to 10) have filed this petition under Article 227 of the Constitution of India assailing the orders passed by 2nd Civil Judge Class-II, Sihora in Civil Suit No. 48-A/2008 dated 24-10-2009, by which the application filed by the plaintiffs under Order 12, Rule 2 of the Code of Civil Procedure has been allowed and the order dated 1-1-2010, by which the application filed by the petitioners under section 151 of the Code of Civil Procedure seeking direction to produce the evidence of defendant No. 5 first has been rejected.

(2.) The plaintiffs/respondents 1 to 8 have filed a suit seeking declaration of title, possession and permanent injunction against the petitioners and respondent No. 9 with respect to the land of Mouza Muskuri, Nazool Bandobast 687/639 Patwari Halka No. 50/78, Division Khitola, Tahsil Sihora, District Jabalpur of Khasra No. 100 area 1.084 hectare (hereinafter referred to as 'the disputed land'). The said land was purchased by defendant No. 5 (respondent No. 9-Fatima Bi) by registered sale deed dated 8-2-1955. After Bandobast (settlement) Khasra number was changed as 116 and 121. It is further averred that the predecessor in title Fatima Bi has executed a sale deed on 12-7-1989 on payment of consideration of Rs. 13,000/- in the name of father of plaintiffs namely Ramtahal s/o Batiram Patel and delivered the possession of the disputed land. However, the plaintiffs who are the wife and sons of Ramtahal have become absolute owners after his death. Defendants 1 to 4 and 6 to 10 have prepared a document with the forged signature of the predecessor Fatima Bi of transfer in their favour of the said land by unregistered document. It is said that the valuation of the said land while executing the sale deed in favour of the plaintiffs in the year 1989 was Rs. 13,000/-. However, any unregistered document of valuation more than Rs.100/- does not confer the title by transfer as per section 17 of the Registration Act, 1908. It is further said that on the basis of such a document mutation was ordered in the name of defendants 1 to 4 and 6 to 10 without following the rules, therefore, the said mutation is invalid. It is also averred that on the basis of the said mutation, sale deeds which were executed by defendants 1 to 4, in favour of defendants 6 to 10 are void ab-initio. However, no title of the disputed land can be transferred by defendants 1 to 4 in favour of defendants 6 to 10 by executing various sale deeds. In view of the said averments, prayer is made for declaration of title on the disputed land and to declare the sale deed, if any executed , as void and for delivery of possession of the said land in favour of the plaintiffs seeking injunction not to alienate the disputed land, by demolishing the construction, if any.

(3.) Defendants 1 to 4 and 6 to 10 have filed a joint written statement stating that the real owner of the disputed land is Mohd. Yunus s/o Mohd. Yusuf who had purchased the said disputed land and take over the possession in the year 1955. The said land has been transferred by him in favour of defendants 1 to 4, therefore, they are the real owners of the said property and the sale deed has been executed in favour of defendants 6 to 10, however, the plaintiffs do not have any title or right in the disputed land. It is also stated that the suit for declaration, possession is barred by time. The valuation has not been properly done and, therefore, on this count also the suit is liable to be dismissed.