MOHANLAL GUPTA Vs. RAMASHANKAR MISHRA

JUDGEMENT

(1.) Rama Shankar Mishra-respondent No.1 was plaintiff before the trial Court, who has filed the suit for declaration of title, permanent injunction, partition of suit land and to declare partition between his father and brothers dated 17/5/1996 to be null and void. Further a prayer was made that land sold to defendant No.9 namely Mohan Lal Gupta by defendant No.1 Ramashray by Ex.D1 is null and void and plaintiff is entitled to get the possession over the suit land after removing the construction done by defendant No.9.

(2.) Learned trial Court held that the disputed suit property is ancestral joint Hindu family property of plaintiff and defendant Nos. 1, 2 and 3. It was further held by the trial Court that plaintiff has 1/4th share in the suit property. Learned trial Court held that partition dated 17/5/1996 is bad in law by which defendant No.1 i.e. the father of plaintiff Ramashraya gave 5.53-5.53 acres of land to defendant Nos. 2 and 3 i.e. namely Siddhnarayan and Kripashankar respectively. Learned trial Court also held that gift deed by maternal grandfather in respect of village which fell in their share is not proved by the plaintiff. The suit filed by the plaintiff was decreed to the extent that he is entitled to get 1/4 th share of the suit property. Learned trial Court also held that Ramyash, who is defendant No.5 in the suit has no right to sell 1/4th of his share in the suit property to Mohan Lal Gupta by registered sale deed. The suit property was joint family property and same was not partitioned, therefore, sale deed was held to be bad.

(3.) Plaintiff Ramashankar Mishra challenged the issues in appeal which were answered against him. It was averred by the plaintiff Ramashankar in appeal that as Issue Nos. 18 and 19 are answered in his favour, therefore, the trial Court ought to have allowed Issue No.3 regarding removal of encroachment done by defendant No. 9 Mohan Lal Gupta on the suit property. Learned appellate Court held that defendant Ramyash, who had sold the property, has not filed any appeal against the judgment and decree of the trial Court. Neither the legal representative of defendant No.5 or Mohan Lal Gupta had filed any appeal against judgment and decree passed by the trial Court. Since Issue Nos. 18 and 19 have been answered in the favour of plaintiff-respondent No.1, therefore, trial Court ought to have allowed Issue No.3 also. Holding the same, appellate Court has allowed the appeal and held that conclusion given in paragraph No.35 of judgment and decree is set aside and decreed that defendant No.9 Mohan Lal Gupta, who is appellant in S.A. No. 2204/2018 may remove his construction made during pendency of suit on basis of registered sale deed Ex.D/1 and plaintiff-respondent No.1 is entitled to get possession of the said land.