NIRMAL CHAND JAIN Vs. VIJAY KUMAR

JUDGEMENT

(1.) THIS is a second appeal under Section 100 of the Code of Civil Procedure, 1908.

(2.) VIMALCHAND Jain (appellant) and Vijay Kumar (R-1) are real brothers. Smt. Vishambai (since deceased on 23-5-98 her legal representatives are brought on record) was his wife. Sharad Kumar (R-5) is son of Vijay Kumar (R-1) and Smt. Vishambai. Smt. Ritu Jain (R-2), Smt. Babli Jain (R-3), Ku. Megha Jain (R-4) are the daughters of Vijay Kumar (R-1) and Smt. Vishambai. Vijay Kumar (R-1), his wife late Smt. Vishambai and Sharad Kumar (R-5) had sold certain agricultural lands situate in village Kelwas, which are disputed in this case, to Vijay Kumar son of Chhakorilal (R-6) on 2-9-1987 by three different registered sale-deeds. Possession was handed over to Vijay Kumar son of Chhakorilal (R-6 ). These lands have been mutated in his name and Bhoo Adhikar and Rin Pustika has also been issued to him.

(3.) ON 25-3-86 the appellant filed a civil suit for declaration of title and permanent injunction against Vijay Kumar (R-1), his wife late smt. Vishambai and Sharad Kumar (R-5) claiming that all of them were members of joint family till 9-2-79 when there was an oral partition between them. Suit lands entered in revenue records in names of these respondents were allotted to the appellant and a memo of partition was written. However, there was no mutation in revenue papers. The appellant had an apprehension that the suit lands may be sold by Vijay Kumar (R-1) and this became true. Later on by way of amendment the appellant added a prayer for possession of suit lands claiming that the suit lands were sold to Vijay Kumar son of Chhakorilal (R-6) during the pendency of civil suit and possession was delivered to him.