RESHAM BAI Vs. LAXMAN

JUDGEMENT

(1.) THIS is plaintiffs' second appeal against the judgment and decree dated 15.10.2008 passed by IInd Additional District Judge, Dhar in Civil Appeal No.17A/2008. By the impugned judgment and decree, the appeal preferred by respondents was allowed and the suit filed by the appellants was dismissed.

(2.) THE property in dispute is survey No.487, area 0.329 hectare, situated in village Bagdia, Tehsil and district Dhar. Appellants are sisters and the respondent No.3 is their brother. It is undisputed that the property in dispute belonged to their father Goba. The case of the plaintiffs in the trial Court was that after the death of Goba, there was a family partition between the surviving heirs and the property in dispute was given to their mother late Smt.Ramibai as her share. According to plaintiffs, late Smt.Ramibai gave the property in dispute to plaintiffs and for the last 13 years, plaintiffs are in exclusive cultivating possession of the property in dispute. It was alleged that respondent No.2 taking advantage of wayward life style and bad habits of respondent No.3 obtained a sale deed of the property in dispute from respondent No.3 in favour of respondent No.2 and later on the respondent No.2 sold it to respondent No.1. It was alleged that the respondents were trying to interfere with the possession of the plaintiffs over the property in dispute, therefore, they filed a suit for permanent injunction.

(3.) IN their written statement, respondents traversed the material allegations of fact and joined issues with the plaintiffs. It was denied that the land in dispute was the exclusive property of Smt.Ramibai or that she gave it to plaintiffs. It was also denied that the respondent No.2 took advantage of respondent no.3's bad habits and got the sale deed executed in his favour. It was alleged that respondent No.3 had executed a sale deed in favour of respondent No.2 way back in the year 1992 and since then plaintiffs were aware of the said sale deed or at any rate they had acquired knowledge of this fact after the respondent No.3 had filed a suit for permanent injunction in the year 1998 wherein plaintiffs were impleaded as defendants. It was alleged that the suit was barred by time. It was also alleged that the simpliciter suit for permanent injunction without claiming the relief of declaration or the relief of setting aside the sale deed, in the facts and circumstances of the case, was not maintainable. With these allegations parties went to trial and adduced evidence. Learned trial Judge by the judgment and decree dated 18.07.2008 decreed the suit, therefore, the matter was carried in appeal by the respondents. Learned lower appellate Court after hearing the rival submissions and going through the material available on record allowed the appeal and dismissed the suit, as is stated herein above. Hence, this second appeal by the plaintiffs.