VACHAN SINGH Vs. BHOLARAM

JUDGEMENT

(1.) This appeal under section 96 of the Code of Civil Procedure 1908 has been preferred by the appellants/defendants No. 2, 3, 5 and 6 against a judgment and decree dated 16th August 2005 rendered in Civil Suit No. 16-A/2003 by the First Additional District Judge Dabra, district Gwalior (M.P.) whereby decreeing the suit holding that plaintiffs and defendants No. 1, 3 and 4 are the legal representatives of the deceased Paramnand, owner of agricultural lands under suit and defendant No.5 Vrindawan is not adopted son of Dakhhobai and therefore the sale transactions made by Vindawan in excess to his share in favour of Ramveer Singh, defendant No.6/appellant No. 4 against other cosharers are declared as void and ineffective. Consequently, the plaintiffs and defendants named above have been declared as entitled to get the partition of the suit lands as per revenue laws.

(2.) The facts, in short, for adjudication of this appeal are that deceased Parmanand was owner of the agricultural lands comprised in different survey numbers as mentioned in the plaint schedule, having total area of 3.134 hectare situated in village Akwai Badi Tahsil and district Dabra. After death of Pamanand, the aforesaid agricultural lands were inherited by his sons/plaintiffs Bholaram, Kalyan Prasad, Gendalal and daughters namely Smt. Dakhoobai, Mahadevi and Bhagwati. Parmanand died near about 25 years ago. After death of Parmanand and prior to institution of the suit, Smt. Dakhoobai daughter of Parmanand and her husband Rameshwar also died issueless. Defendant/appellant Vrindawan who is son of Smt. Bhagwati claimed himself as adopted son of Smt. Dakhoobai on the basis of forged Will executed in his favour during lifetime of Dakhoobai. On the basis of aforesaid, he successfully mutated his name over the property belonging to deceased Dakhoobai in the revenue records. It is further stated that the plaintiffs and defendants No. 3, 4 and 5 submitted an application before Naib Tahsildar in which the order was passed on dated 27th February 2003 in Revenue Case No. 29/2001-2002 A-27 by Naib Tahsildar, Pichhore and the partition between the heirs of the deceased Parmanand was done on meets and bounds as per list of partition. The aforesaid partition order was challenged under appeal before Sub Divisional Officer (Revenue) Dabra in which order of stay was granted by the appellate authority. Meanwhile, prior to the suit on 26th May 2003 defendant Vrindawan and Smt. Bhagwati both sold the lands to Ramveer Singh. It is further alleged that Gendalal son of deceased Paramnand also sold 1/6th share of the property under dispute to Bittobai by sale-deed after death of his father. Thereafter, Bittobai sold that 1/6th share in favour of Vachan Singh by executing saledeed on 23/3/93. Hence, by filing the suit for declaration as above it is prayed by the plaintiffs that the sale deed executed by defendants No.3 Smt. Bhagwati and No.5- Vrindawan in favour of defendant No.6- Ramveer Singh in respect of the property belonging to deceased Dakhoobai and the sale-deed executed by defendant No.1-Gendalal, son of the deceased in favour of Bittobai in regard to 1/6th share in the suit property be declared as null and void having exceeded to the shares of other shareholders in suit property. After trial, the learned trial Judge decreed the suit for title over the property and also declared the sale deed executed by defendants No. 3 and 5, namely, Smt. Bhagwati and Vrindawan in favour of defendant No.6-Ramveer Singh as null and void. By the aforesaid impugned decree, the learned trial Judge also held entitled the plaintiffs Bholaram, Kalyan Prasad and defendants No.1-Gendalal, No.4- Smt. Mahadevi and No.3-Smt. Bhagwati to receive their share after getting partitioned the suit property through revenue authority each to the extent of 1/5th share being legal heirs of the deceased Parmanand. Being aggrieved by the judgment and decree of the learned trial Judge, the appellants have come up in this appeal.

(3.) It is submitted by the appellants that the judgment and decree under appeal is patently illegal and perverse to the evidence on record and therefore same is liable to be set aside. It is further contended that the trial court fell in error in not holding that the property after partition by the competent revenue court was not joint property and therefore it cannot again be partitioned. The trial court again erred in holding that the burden of proof of the issues as framed were duly proved by evidence of the plaintiffs. On these grounds, it is prayed that by allowing the appeal the judgment and decree may be set aside.