MOHAMMED SHAFI Vs. CHAND KHAN

JUDGEMENT

(1.) Petitioners/defendants have filed this petition under Article 227 of the Constitution of India challenging the validity of order dtd. 10/1/2023 passed in R.C.S.A/2/2014 whereby application filed under order 6 Rule 17 of C.P.C. seeking amendment in the written statement and application under order 8 Rule 1 of C.P.C. seeking permission to file document has been rejected.

(2.) Respondent Nos. 1 and 2 being plaintiff filed suit for declaration and permanent injunction for the land survey No.641 area 3.20 hectare and 643/1 area 2.06 situated at Village Matanakala, Tehsil & District Ujjain in order to challenge the validity of sale deed dtd. 13/1/2014 executed by defendant Nos.1 to 3 (petitioners) in favour of defendant No.4 ( respondent No.3). The Civil Suit is pending since 2014. According to the plaintiff, the suit land was purchased by Kareem Khan who died in the year 1980. His wife Jawa Bai had no issue. Father of the plaintiff used to live in Kareem Khan's house. The mother of plaintiff Faizanbai and Jawa Bai were real sister. After the death of Kareem Khan, the name of Jawa Bai was mutated in the revenue record as owner who died in the year 1996. During her life time, she declared the plaintiffs her legal heirs and executed a oral Hiba in their favour. After the death of Jawa Bai, the plaintiff moved an application for mutating their name and case was registered by the Naib Tehsildar and after recording the evidence, the order was passed on 7/8/1996 in favour of the plaintiff. Thereafter, the plaintiffs sold the land survey No.643 area 0.13 RA to Shantabai on 26/6/2000. The plaintiffs also received compensation for Gas Pipeline for the said land. According to the plaintiff in the month of January 2014, some miscreants tried to take possession of the land. They disclosed that the defendant No.4 has purchased the land from the defendant No.1 to 3. They further enquired and found that the defendant No.1 to 3 filed an appeal before the SDO against the order dtd. 7/8/1996 and on the basis of forge service report the order of mutation got set aside and got recorded their name in the revenue record vide order dtd. 19/8/2013. Thereafter, they filed an appeal before the SDO, where stay has been granted. Therefore, sale deed dtd. 13/1/2014 is void and not binding on the plaintiffs.

(3.) The defendant No.1 to 3 i.e. petitioners appeared and filed the written statement admitting the execution of sale deed 13/1/2014 in favour of defendant No.4. According to the defendants their grand father Nathu Kha was real brother of Kareem Khan who died without issue and they are the son of Mohhamad Khan therefore, they had inherited the property of Kareem Khan after the death of Jawa Bai. They have denied the execution of oral Hiba. The defendant No.4 also filed written statement and prayed for dismissal of suit. They also filed cross appeal seeking declaration that they have become owner of the suit and the plaintiffs be restrained not to interfere in their peaceful possession.