BAIJANTH SINGH Vs. JAGDISH

JUDGEMENT

(1.) This appeal by defendants under Section 100 of C.P.C. is directed against the judgment and decree dated 28/2/2004 passed by Additional District Judge, Sabalgarh, District Morena in Civil Appeal No. 31-A/2001; reversing the judgment and decree dated 15/10/2001 passed by Civil Judge, Class I, Sabalgarh in Civil Suit No. 33-A/1998; by which though on merits the trial Court has recorded positive findings in favour of plaintiffs; however, dismissed the suit while answering issue No. 4 as regards pecuniary jurisdiction of the Court. First appellate Court has affirmed the findings of the trial Court on appeal by plaintiffs on merits of the suit as well as set aside the judgment of the trial Court on issue No. 4 relating to pecuniary jurisdiction.

(2.) Appeal is admitted on the following substantial question of law:-

(3.) Facts necessary for disposal of this appeal in a narrow compass are that the plaintiffs have filed a suit for declaration and permanent injunction in respect of the Pator and open land of house No. 41 by stating themselves to be the owner of entire suit land ad-measuring 7 biswa falling in survey No. 461, village Sabalgarh, Ward No. 15 against defendants. Defendant No. 3 Kalawati on 13/3/1995 had executed a registered sale deed in favour of defendants No. 4 and 5 in respect of the suit land. On the day of sale deed, defendant No. 2 Babulal was residing in that Pator. Defendant No. 1 Nathi and defendant No. 2 Babulal and one Ramcharan are real brothers. The suit land was purchased by father of the plaintiffs Moti for his own residence in samwat 2015. There was an open land and Pator adjacent to the suit house of the ownership of Late Moti. Moti died 10 years preceding to the date of filing of instant suit. The plaintiff thereafter also purchased another open land adjacent to the suit land and constructed a house, where he used to live with his family and had also permitted defendant No. 2 Babulal to live therein. The house of the defendant No. 1 and his two brothers were on the western side of the suit house. Share of defendant No. 2 was sold by defendant No. 1 to one Murari Vaishya and ousted the defendant No. 2. The plaintiff allowed Babulal to live in suit house where he was living with his family. As defendants tried to forcibly take possession of the suit property, though they had no right, title or interest over the same, plaintiff filed a suit against the defendants for declaration and injunction. During pendency of the suit, an amendment was brought seeking declaration of the alleged sale deed dated 13/3/1995 executed by defendant No. 3 Kalawati wife of Nathilal (defendant No. 1) in favour of defendants No. 4 and 5 as null and void.