KEWAL SINGH Vs. SETH RADHAVALLABH

JUDGEMENT

(1.) THE learned Civil Judge, Class-I, Berasiya vide judgment and decree dated 30.4.1994, in civil suit No.61-A/ 1989 partly decreed the suit filed by the appellants/plaintiffs that the right of the plaintiffs was declared in the suit property and an injunction was granted to auction the house, situated on the property. In Civil Appeal No.3- A/1997, the learned 5th Additional District Judge, Bhopal vide judgment and decree dated 19.12.1997 dismissed the suit filed by the plaintiffs. Being aggrieved with the judgments passed by both the Courts below, the applicants have preferred the present revision.

(2.) THE plaintiffs had filed a civil suit before the trial Court that the respondent No.2 Madho Singh is father of the plaintiffs No.1, 2 and 3 and husband of the plaintiff No.4. He mortgaged the suit property, situated on survey No.47, area 1.66 acre, situated at village Barkhedi, Tahsil Berasiya with the respondent No.1 Radhavallabh that it was an ancestral property. The respondent No.2 was in habit to drink excessively and his mental condition was not fit. He was in habit to take loans to consume liquor and not to return thereafter the loan amount. The property was mortgaged with the respondent No.1 by a mortgage deed dated 29.5.1971 because the respondent No.1 took a loan of Rs.3,000/-. Since the property was ancestral and it was earned by Aman Singh, father of the respondent No.2, therefore, the respondent No.2 could not mortgage that property to anyone. A civil suit No.7-A/1975 was filed by the respondent No.1 against the respondent No.2. On 6.3.1975, a collusive compromise took place between the respondents No.1 and 2 and the suit was decreed. Thereafter, the respondent No.1 had filed an execution, in which the entire property was attached. The plaintiffs had filed an objection under Order 21 rule 58 of the CPC but, it was not accepted and therefore, they filed a suit to declare that the property was of Joint Hindu Family and the respondent No.2 could not mortgage the property to anyone, without any legal necessity.

(3.) THE respondent No.2 remained ex-parte.