SHANKAR Vs. RADHA BAI

JUDGEMENT

(1.) On behalf of the appellant this appeal is preferred under section 100 of Civil Procedure Code being aggrieved by the judgment and decree dated 24-1-2002 passed by 3rd Additional District Judge, Chhindwara in Regular Civil Appeal No. 106-A/1999 affirming the order dated 2-11-1999 passed by 5th Civil Judge, Class-II, Chhindwara passed in COS No. 69-A/98 whereby allowing the application of the respondents/defendant No. 2 filed under Order 7, Rule 11 of Civil Procedure Code the impugned suit of the appellant filed for different declarations and perpetual injunction with respect of the alleged agricultural land was dismissed. According to factual matrix of the case the appellant herein has filed the impugned suit for quashment of the sale deed dated 6-5-1992 executed by the respondent No. 1 in favour of respondent No. 2 with respect of some disputed land along with the prayer for quashment of the partition dated 25-5-1977 and its mutation order dated 10-5-1979 with a direction to carry out the partition of entire disputed land afresh and pursuant to it the prayer for separate possession is also made. Apart from this the prayer for decree of possession against the respondent No. 2 with respect of the land mentioned in the aforesaid sale deed dated 6-5-1992 with a further prayer for issuing perpetual injunction against the respondent No. 1 restraining him to disburse the sum of consideration received by her under execution of the aforesaid sale deed is also made.

(2.) As per averments of the plaint Late Heeraji being Karta of the family of the appellant and private respondents was the recorded Bhoomiswami of the ancestral land Survey Nos. 278, 282, 283 and 289 total area 21.53 acres. On 25-5-1977 such land was partitioned by Heeraji between him, his wife/respondent No. 1 and his sons. Pursuant to such partition under the order of the Revenue Authority vide dated 10-5-1979 the name of concerning persons were mutated separately in the revenue record. In such partition three acres land of Survey No. 278 and one acre land of Survey No. 282 total four acres was given to his second wife principal defendant No. 7 Kapuri Bai from whom he was blessed with one son Gendrao. Apart from this principal defendant No. 8 Shyam Rao was given 3.76 acres land of Survey No. 278 while 5 acres land of Survey No. 289 was given to Shankar and remaining land was kept by Heeraji with him. Subsequent to such partition the respondent/principal defendant No. 1 Radhabai did not want to reside with Kapoori Bai the second wife of Heeraji and therefore the respondent No. 1 resided with Heeraji and cultivating the land of his share. The other heirs of Heeraji did not object such cultivation of the land by the principal defendant No. 1 Radha Bai. Subsequent to aforesaid partition and mutation the aforesaid Heeraji had passed away. After death of Heeraji the appellant, respondent No. 1, the wife of Heeraji and his other sons inherited the right of such land. Subsequent to death of Heeraji the principal defendant No. 3 and 4 Manu Bai and Shanti Bai taking advantage of their relation with the respondent No. 1, in whose name the aforesaid remaining land of Heeraji was recorded for their own benefit misguided and insisted her to sale such land bearing Survey No. 282/2 and 283 to the respondent No. 2, same was sold by the respondent No. 1 to the respondent No. 2 vide sale deed dated 6-5-1992. As per further averments before executing such sale deed no information in this regard was given to the appellant and other sons of Radha Bai and the consideration of sale deed received was kept by the principal defendant Nos. 1, 3 and 4 namely Radha Bai Jagan and Manu Bai with them.

(3.) On receiving the information regarding execution of the aforesaid sale deed dated 6-5-1992 the appellant rushed to the Civil Court with the impugned suit with a prayer to quash such sale deed along with other prayers described in the plaint as stated above.