DARBARI Vs. SUNWA

JUDGEMENT

(1.) BEING aggrieved by the judgment/decree dated 21-2-89, passed by ADJ, Panna in C. A. No. 3-A/85 partially modifying the decree dated 30-1-85, passed by Civil Judge Class-II, Ajaygarh in C. S. No. 17-A/84, the defendant/appellant has preferred this appeal under Section 100, CPC.

(2.) APPEAL has been admitted on the following substantial question of law:-Whether the suit for declaration simpliciter without seeking any other relief is maintainable ?

(3.) PALTU Gadariya was the owner of the suit lands situated at Village Singhpur, Tehsil Ajaygarh. He was survived by his widow Muniya Bai and two sons. Plaintiff/respondents Sunwa and late Hulasi Gadariya. Defendant/respondent Badi Bahu is widow of Hulasi Gadariya, Plaintiff/respondent Sunwa instituted C. S. No. 17-A/84 for declaration that he is the owner of the suit land, in possession. It has been further stated that there had been a partition among Muniya, Sunwa and Hulasi Gadariya wherein l/3rd interest in suit land was allotted to each of 3 members of the family. Muniya Bai executed a Will dated 14-7-65 (Ex. P-1) of her 1/3rd interest in favour of plaintiff/respondent Sunwa. Defendant/respondent Badi Bahu without any right executed a sale deed, dated 2-5-80 (Ex. D-1) in favour of defendant/appellant Darbari. Plaintiff/respondent is not bound by the aforesaid sale deed 2-5-80 (Ex. D-1 ). Accordingly, a declaration has been sought to the effect that plaintiff/respondent is owner of the suit lands. The suit was resisted by the defendant alleging inter alia that there was no partition among Muniya Bai, Sunwa and late Hulasi. Sunwa and Hulasi inherited the suit lands in equal share from late Paltu. Accordingly, they remained in separate possession of their shares. Badi Bahu is widow of Hulasi and has sold her 1/2 share in the suit land to the defendant/appellant Darbari vide Regd. sale dated 2-5-80 (Ex. D-1), since then defendant/appellant remained in possession of this part of suit lands. The suit for mere declaration of title is not maintainable.