VIRENDRA KUMAR Vs. TIRATH PRASAD

JUDGEMENT

(1.) This appeal has been preferred by the plaintiffs. This Court vide order dated 28-11-1995 while admitting the appeal had framed the following substantial questions of law :--

(2.) The defendants filed written statement in which it was, inter alia, pleaded that the deceased Shobhnath was not the member of joint family. It was further pleaded that partition between the father of the plaintiff and deceased Shobhnath had taken place prior to 1921. Shobhnath died in the year 1960 and was in separate cultivating possession of the land belonging to him. After his death the suit lands devolved on his sister. It was also pleaded that the order of mutation was passed in favour of the defendant No. 1 on 7-12-1981. The suit lands have been sold by mother of the defendant No. 1 in favour of defendants No. 2 and 3. The plaintiffs are neither the owners nor in possession of the suit lands.

(3.) The trial Court vide judgment and decree dated 8-8-1988, inter alia, held that the plaintiffs' father and deceased Shobhnath were not members of joint family. It was further held that the deceased Shobhnath died sometime in the year 1946 i.e. prior to commencement of Hindu Succession Act, 1956 and after the death of the deceased Shobhnath the suit lands devolved on the plaintiffs. The order of mutation in favour of defendant No. 1 was held to be illegal. It was further held that mother of the defendant No. 1 had neither any authority to execute the sale deed in favour of defendants No. 2 and 3 nor she had handed over the possession of the suit lands to defendants No. 2 and 3. It was also held that the order of mutation dated 31-8-1975 was not passed with the consent of the plaintiffs. Accordingly, the suit was decreed.