PRABHUDAYAL Vs. BARI BAI

JUDGEMENT

(1.) The appellants/defendants/tenants have filed this appeal under section 100 of the CPC being aggrieved by the judgment dated 20.6.2012 passed by Addl. Judge to the Court of First ADJ, Datia in Civil Regular Appeal No.16-A/2011, affirming the judgment and decree dated 8.11.11 passed by Civil Judge Class-I, Datia in COS No.12-A/11 whereby the suit of respondent No.1 filed for declaration and perpetual injunction against the appellants with respect of the half of the agricultural land described in the plaint has been decreed.

(2.) The facts giving rise to this appeal in short are that the disputed land was initially recorded in the name of husband of respondent No.1, namely, Gyandas. Subsequent to his death, the same was mutated in the name of respondent No.1 in the revenue record vide order of Tehsildar dated 15.12.08. Thereafter, the appellants under some conspiracy with the revenue officials had obtained the signature of respondent No.1 on some blank paper and by preparing some documents on the same, they got mutated their name on the land of respondent No.1 in the record of rights. In this regard, no intimation was given to respondent No.1 by the revenue courts. Even the opportunity of hearing was also not extended. It is also stated that on the basis of forged and fabricated papers, some proceedings of partition was carried-out. The same was known to respondent No.1 in the year 2010 when she went to the land for cultivation where the appellants tried to restrain her to carry-out such agricultural activities saying that she does not have any share in the land then on verification she came to know about the aforesaid fraud of the appellants, on which, she filed an application for review of the order of Tehsildar. The same was dismissed. Such order was challenged in the court of Collector, on which, by allowing such proceedings in part, the case was remitted back to the Tehsildar, Bhander for re-consideration. Thereafter, again such review application was dismissed and, in such premises, when the appellants were trying to interfere in the possession and title of respondent No.1 then the impugned suit was filed by her for declaration and perpetual injunction till the extent of her half share.

(3.) In the written statement of the appellants, by denying the title and possession of respondent No.1 over the property, it is stated that it being their exclusive property, they are in possession and cultivating the same since long. The respondent No.1 was never remained the Bhumi Swami of the same. As such, in partition, the respondent No.1 herself had given such land to the appellants and now she is bound by the principle of estopple and could not challenge such partition. It is also stated that the appellants served Gyandas because he was residing with them and in his life-time,he shown his wish to give the land to the appellants and pursuant to that the aforesaid partition was carried out at the instance of respondent No.1 in which the entire land was recorded in the name of the appellants. Thereafter, by making the false and fabricated story under the pressure of Haridas, the brother of respondent No.1 she has filed the present suit. It is also stated that no cause of action is available to the respondent No.1 to file the suit and specially after dismissal of the review petition by the Tehsildar, there is no scope to pass the decree in the matter. On account of long possession of the appellant, the suit of the respondent is also barred by time. The same being not filed on proper valuation and court fees, deserves to be dismissed. In addition to it, it is stated that appellants being the legal representatives of Gyandas of classII of the schedule of Hindu Succession Act. Besides this, some other technical objections with respect of section 80 and non-joining the Tehsildar as necessary parties in the suit are also taken. In such premises, the prayer for dismissal of the suit was made.