SUNIL KUMAR Vs. ANGURI CHOUDHARI

JUDGEMENT

(1.) INVOKING the revisional jurisdiction of this Court under Section 115 of the. Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') the applicants have called in question the sustainability of the order dated 17-3-99 passed by the learned First Additional District Judge, Shahdol in Civil Suit No. 2-A/93.

(2.) THE non-applicant No. 1 as plaintiff initiated a civil action for partition and separate possession of the suit house situate over Khasra No. 1207, Burhar, Tahsil Sohagpur, District Shahdol. The case of the plaintiff in the Court below was that by Hukumnama date 26-8-41 the then Pawaidar, Shri Lal Shiv Pratap Singh, granted the aforesaid Khasra No. 1207 to Kishore Chand who later on built shops and residential accommodation. After the expiry of said Kishorchand on 1-7-72 his widow Kasturibai, the defendant No. 1, and daughter, Anguribai, the plaintiff, inherited the said land with superstructure standing on it under the provisions of Hindu Succession Act, 1956. It was pleaded that the defendants, namely, Sunil Kumar and Sanjay Kumar, the sons of Virendra had no right, title or interest over the suit property. In Paragraph 4 of the plaint it was setforth that by Hukumnama dated 26-8-41 the disputed land was bounded on the East by road leading to Railway. In Paragraph 12 the plaintiff stated that it relied upon the documents filed the list. It is putforth in the revision petition that the plaint was further conspicuously silent as to actual physical possession of the original Hukumnama. The plaintiff omitted to state in whose possession the original document was. The document enclosed was neither the original nor the photocopy nor the true copy of the original.

(3.) THE applicants who were the defendants in the Court below denied the claim and specifically pleaded that no Hukumnama was ever executed on 26-8-41 or on any other date to convey the piece of land situate on Khasra No. 1207 which finds mention in Paragraph 4 of the plaint. In the written statement it was categorically asseverated that Thakur Lal Shiv Pratap Singh did not have the power to dispose of the land and the same was disputed. The execution of Hukumnama by said Thakur Lal Shiv Pratap Singh was controverted. It was putforth that Pawaidars after certain point of time were authorised to grant 'pattas' of land which were not already allotted to some other persons. The case of the defendants was that the land bearing Khasra No. 1207 of Burhar town was already held by Gannulal as 'pattedar' thereof and, therefore, the Pawaidar had no power to grant 'pattas' thereof or 'hukumnama' for the said piece of land as the land in question was not available for allotment. It was putforth that the alleged 'hukumnama' purporting to transfer a piece of land of high valuation could not confer any title on Late Kishorchand and through him to the plaintiff, as said Kishorchand had never acquired any right, title or interest on the disputed land. It was putforth that at the time of death of Kishorchand the land already vested with the father of the defendants and there was nothing to devolve on the daughter of Late Shri Kishorchand. It was further stated that the land has been mutated and diverted in the favour of Shri Virendra Kumar in the years 1958 and 1967, respectively. It was also the case of the defendant that Gannulal demised the said land by registered sale-deed dated 10-12-36 in favour of Shri Veerchand who owned and possessed the land after sale.