HARI SHANKAR PALIWAL Vs. OM PRAKASH

JUDGEMENT

(1.) THIS appeal by the plaintiff under section 100 CPC is directed against the judgment and decree dated 27/02/2006 passed in civil appeal No. 131A/2004 by II Additional District Judge (Fast Track), Sheopur District Sheopur whereby the judgment and decree dated 30/10/2004 passed in civil suit No. 2A/2001 (Hari Shankar Vs. Nagar Palika and others) by I Civil Judge, Class -I, Sheopur, allowing plaintiff's suit for declaration and permanent injunction has been partially set aside.

(2.) FACTS necessary for disposal of this appeal are to the effect that one Sitaram owned house No. 41, Ward No. 10, Ganesh Gali, Sheopurkalan (hereinafter referred to as 'the suit house'). Sitaram is stated to have died on 22/04/1960 and succeeded by his three sons, viz., plaintiff, Hari Shankar, defendant No. 2 Vijay Shankar (since dead) and defendant No. 4 Gordhanlal and, therefore, they became joint owners and in joint possession of the suit house. In fact, the change of name in the municipal record was required to be made substituting the name of all three sons in place of Sitaram., as the plaintiff Hari Shankar and Gordhanlal are in service and lived in the State of Rajasthan, Vijay Shankar and his son, Om Prakash have been looking after the house in their absence. Vijay Shankr and Om Prakash without notice and without knowledge of the plaintiff, Hari Shankar and Gordhanlal have manipulated their names as successors in the service book of late Sitaram maintained at the Excise department where the deceased had worked as government servant. Plaintiff, Hari Shankar and Gordhanlal have applied for mutation of their names in the municipal record on 17/12/1985 and the same was refused. It has come to the knowledge of the plaintiff that behind back of plaintiff and Gordhanlal, Omprakash has got his name recorded in the municipal record as regards the suit house even without depositing the outstanding dues of the property tax as has been communicated to the plaintiff by the Municipal Council, Sheopur. Under such circumstances, plaintiff has filed a suit for declaration to the effect that plaintiff alongwith Gordhanlal and Vijay Shankar be recorded as successors of the suit house left behind by Sitaram with a prayer that the Municipal Council be directed to refund Rs. 100/ - as the same was paid for publication of notice for mutation in the municipal record.

(3.) DEFENDANT Gordhanlal has filed written statement and supported the averments made in the plaint.