SHANTABAI Vs. RAMU

JUDGEMENT

(1.) This is an appeal arising out of judgment and decree dated 23.09.2013 passed by Ist Civil Judge, Class-II, Khargone, West Nimar in Civil Suit No.10-A/2011 and judgment and decree dated 15.11.2014 passed by IVth Additional District Judge, Khargone, West Nimar in Civil Appeal No.5A/14, whereby the civil suit as well as the first appeal both have been dismissed respectively.

(2.) Plaintiff No.1 is the wife of late Narayan and plaintiffs No.2 to 4 are sons of late Narayan. Narayan and defendants No.1 to 6 are real brother and sister. The plaintiffs filed a civil suit for declaration of title, partition, possession, mutation and declaration of sale deed as void in respect of land survey Nos.37 and new Nos.37/1, 37/2, 37/3, 78/1/1, 78/2/2 and 78/1/3, total area 7.874 hectares and a two storied house constructed over 20 x 100 sq. ft. (hereinafter referred to as 'the suit property'). According to the plaintiffs the suit property is a joint Hindu family property in which partition has not taken place between late Narayan with defendants No.1 to 6 and the same is recorded jointly in the revenue record. Late Narayan was in Govt. service and used to remain outside. The defendants No.1 to 3 used to look after the agricultural land. After the death of Narayan on 14.08.2005 the plaintiffs are occupying the suit property jointly with the defendants. Smt.Chandabai, grand mother died on 20.12.2010 and thereafter plaintiffs and defendants have shown their desire for partition of the suit property. However, the defendants No.1 to 3 have removed the name of late Narayan from the revenue record and sold the land bearing survey No.37, area 1.258 hectares to defendant No.7 and the same has been mutated in his name. The defendants No.1 to 3 have sold the land in order to take away the right of the plaintiffs in the suit property. The plaintiffs came to know about the aforesaid sale on 01.02.2011 and thereafter they obtained the certified copy of the revenue record and filed the suit.

(3.) Defendants No.1 to 3 filed the written statement denying the averment made in the plaint by submitting that late Narayan was adopted by the widow of Dulichand Verma and he had relinquished his right in the properties of his natural father i.e. Mothu Gole. After such adoption in the family of Dulichand Verma, there was a civil death and he had no right and title over the properties of his natural father, hence the plaintiffs have no right to claim for partition. Late Narayan was adopted by Sunderbai ( his Mousi). During his life time he has recorded the name of Dulichand Verma as his father in his service record. He was appointed as a Clerk in the Forest Department and retired as Assistant Ranger. He was educated as son of Dulichand Verma. His name was removed from the revenue record in the year 1994. He performed the last rites of Dulichand Verma as his son, therefore, the suit is liable to be dismissed. The defendant No.7 filed a written statement in favour of defendants No.1 to 3. After filing the aforesaid written statement, the plaintiffs amended their plaint on 20.03.2012 by denying the valid adoption of Narayan by Smt.Sunderbai. They have pleaded that since Smt.Sunderbai was not having any issue, therefore, Narayan had started living with her and she admitted him in the school and due to ignorance the name of Dulichand has been recorded as his father in the school record and that entries continued in his service record. Narayan had never received the properties of Sunderbai by way of adopted son. The plaintiffs have also challenged the revenue entries made vide order dated 22.03.1994 & 15.07.1994. On the basis of the pleadings, the trial Court framed eleven issues for adjudication. The plaintiffs examined Kishore Gole as PW/1, Vittal as PW/2, Chandrakant as PW/3, Jagdish as PW/4, Shantabai (plaintiff No.1) as PW/5 and got exhibited 52 documents as Ex.P/1 to P/52. The defendants examined M.C Gupta as DW/1, Zandu DW/2, Nitin Patidar DW/3, Kapoor Chand Gupta DW/4, Nathulal DW/5 and got exhibited 5 documents as Ex.D/1 to D/5.