GOLMAN Vs. MUNIYA BAI

JUDGEMENT

(1.) THE appellant/defendant has filed this appeal under Section 100 of CPC being aggrieved by the judgment and decree dated 30.6.2008 passed by 1st additional District Judge, Betul in Civil Regular Appeal No.37-A/05. affirming the judgment and decree dated 30.8.2005 passed by 1st Civil Judge Class-II Betul in Civil Original Suit No.25-A/00 decreeing the suit of respondent No.1 against the appellant and respondent No.2 to 8 for declaration, perpetual injunction and partition of the disputed agricultural land.

(2.) THE facts giving rise to this appeal in short are that respondent No. 1 herein filed the aforesaid suit contending that land bearing survey No.319, 400 and 406 area 0.891, 0.235 and 1.348 hector situated at village Malajpur being ancestral property of her grand father Roniya was earlier recorded in his name under the Bhoomiswami right. Roniya had five daughters the respondent No.4 to 8 and two sons namely Bhuta and Mallu, the father of respondent No.2 Omkar and respondent No. 1/ plaintiff Muliya bai respectively and on demise of Bhuta and Mallu they inherited their respective Bhoomiswami rights in such land. As per further pleading after the death of Roniya except the name of respondent No.1/plaintiff and Satish the respondent No.3 (the son of respondent No.2) the name of all aforesaid natural heirs of Roniya were mutated in the record of rights. Subsequent to that in the year 1994 in presence of village Community Panchayat in order to resolve their dispute the partition took place between all heirs of Roniya in which land bearing survey No.319 area 0.891 hector and survey No.400 area 0.235 hector was given in the share of respondent No. 1 while the land bearing survey No.406 area 1.338 hector was given to Omkar respondent No.2 in his share. Since then according to such partition the respondent No. 1 and 2 being in possession of the land, are cultivating the same. It is also stated that the aforesaid all five daughters of Roniya respondent No.4 to 8 had left their share in favour of respondent No.1 and 2 in such partition. THErefore, they never remained in possession of any part of it. Subsequent to it respondent No.5 Kallo without any legal right only by taking advantage of the revenue records in which her name was recorded as legal heirs of Roniya had executed a registered sale deed on 3.7.97 in favour of respondent No.3 Satish the son of respondent No.2 wherein the land bearing survey No.400 and 406 was shown to be sold to such respondent No.3 whereas the respondent No.5 after relinquishing her share in the property in the above mentioned partition in favour of respondent No. 1 and 2 was not having any authority to sale the same. THErefore, the aforesaid sale deed 3.7.1997 is not binding against respondent No. 1. In such premises the purchaser had not acquired any rights or title in the property by such sale deed. Subsequent to it respondent No.4 and 6 to 8 also by executing registered sale deed dated 29.12.1996 in favour of the appellant Golman sold him some disputed land but due to above mentioned reason such sale deed was also not binding against respondent No. 1. In addition it is also pleaded that if aforesaid partition dated 19.6.1994 is not found to be proved or legal then the aforesaid ancestral land of Roniya be partitioned between the parties taking into consideration the aforesaid Bhuta and Mallu being co-parcenor of the family with Roniya had 1/3 - 1/3 undivided share while 1/3 was belonging to Roniya and subsequent to death of Roniya only his 1/3 share is inherited by his natural heirs the five daughters respondent No.4 to 8 two sons the respondent No. 1 and 2 or their natural heirs. In such premises the declaration is also prayed that above mentioned sale deeds executed by respondent No.5 and 4 with 6 to 8 in favour of respondent No. 2 and the appellant respectively are not binding till the extent of right and title of plaintiff/respondent No. 1 in the aforesaid land. With these pleading the suit for declaring the share of respondent No. 1 in such land and partition accordingly with a further prayer declaring the aforesaid sale deeds dated 3.7.97 and 29.12.1996 had not adversely affected her right along with further prayer restraining the respondents from interfering in her possession of the disputed land is filed.

(3.) THE remaining respondents/defendants were remained ex-parte in the trial court.