RAJABHAIYA GUPTA Vs. KAMLABAI

JUDGEMENT

(1.) The present miscellaneous appeal under Order XLIII Rule 1(p) of the Code of Civil Procedure, 1908 {for brevity 'Code'} is directed against the order dated 15.3.2005 passed by Additional District Judge, Sihora District Jabalpur in Civil Appeal No. 32-A/2004 reversing the order dated 1.9.2004 passed in Civil Suit No. 373-A/94 whereby the application under Order VII Rule 11 of the Code preferred by the appellant/defendant has been allowed and the suit of the respondent/plaintiffs was rejected. Facts giving rise to filing of this appeal briefly stated are that late Daduram alias Gayadeen, the husband of respondent no. 1 and father of respondents/plaintiffs no. 2 to 7 has preferred the instant Civil Suit No. 373-A/94 for declaration of title and permanent injunction against Jharokhabai widow of Kashiram in respect of the disputed house and land shown in the map annexed alongwith the plaint. He has further alleged in the plaint that owner late Kashiram has executed a will dated 15.8.1968 in his favour in respect of the disputed house and land and since then he is in possession of the disputed house. During pendency of the suit, Jharokhabai, widow of Kashiram, had sold the disputed house to appellant/defendant Rajabhaiya Gupta. Gayadeen died during pendency of the suit and his legal representatives i.e. plaintiff No. 1 to 7 have been brought on record. Jharokhabai was also died, therefore, her successor in interest Rajabhaiya Gupta was impleaded as defendant in the suit.

(2.) Considering rival contentions of learned counsel appearing for both the parties, the Court below framed issues and examined one Suresh Prasad as witness. Before the Trial Court the respondents/plaintiffs moved an application for amendment to the effect that late Kashiram had sold the land bearing Khasra no. 360, 361 and the house constructed therein to one Ramesh Chandra Brijpuriya vide sale deed dated 9.2.1966 for an amount of Rs. 5000/-. Therefore, deceased Kashiram or his widow Jharokhabai had no right/title/interest over the disputed land and the house constructed therein, therefore, the sale deed (BENAMA) entered into by Jharokhabai with Rajabhaiya on 29.5.1993 be declared null and void.

(3.) The appellant/defendant moved an application under Order VII Rule 11 of CPC on the ground that since the plaintiff had admitted in the amendment application that the disputed house and land were already sold by late Kashiram to Ramesh Chandra Brijpuriya vide registered sale-deed dated 9.2.1966 i.e., much prior to the execution of alleged will in favour of the plaintiff, therefore, the suit itself deserves to be dismissed as the alleged will has no force and the late Kashiram had no right to execute the will in favour of plaintiffs when he had already sold the house and land to Ramesh Chandra.