DINESH KUMAR Vs. SURESH @ BUDDHU

JUDGEMENT

(1.) Appellant namely Dinesh Kumar alias Kallu in S.A.No.2066 of 2018 and Appellants in S.A.No.2245 of 2018 namely Vinod Kumar, Smt. Indra Bai, Smt. Gubba Bai alias Geeta were defendants before the trial Court. Suit was filed by Smt. Mullu Bai (Dead) Krishna Bai, Indra Bai and Vasundhara for partition, possession and permanent injunction against the defendants. The case of the appellants in short was that the land in Village Palanpur, Jaipur, and Sanwal Kheda measuring total about 116.98 acres was owned by Ram Kishen Raghuvanshi. After the death of Ram Kishen Raghuvanshi the land was entered in the name of his sons. It was averred by the plaintiffs i.e Wife and daughter of Ram Kishen Raghuvanshi that land in question in Civil Suit was ancestral property of Ram Kishen. Mullu Bai and Krishna Bai were given 19 acres of land and Vasundhara was given 5 acres of land but later on defendant refuse to give possession of the said land to them and land was also entered in their names in revenue record. Due to this eventuality they had filed the suit of partition stating therein that land was not divided between the legal heirs of deceased Ram Kishan Raghuvanshi and his sons mutated their names in the ancestral land in collusion with the revenue officers.

(2.) Trial Court decreed the suit filed by the plaintiff which was affirmed by the Appellate Court. It was held by the trial Court that legal representatives of Ram Kishen are entitled to get 16-16 share in the suit property. The judgment and decree passed by the trial Court as well as by Appellate Court is challenged by the appellants on the ground that in judgment and decree the part of land in respect of which no prayer was made for partition, possession and permanent injunction has also been allowed. The said land was self acquired land of Ram Adhar. Trial Court as well as Appellate Court committed an error of law in decreeing the suit in respect of such lands without any pleadings and proof. In view of above, it is submitted by the counsel appearing for the appellant that judgment and decree passed by the trial court as well as appellate Court stands vitiated.

(3.) Counsel appearing for the appellants has proposed two substantial questions of law:-