NATHU RAM CHANDRA AHIRWAR Vs. BATI BAI

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the concurring judgment and decree dated 06/07/2010 passed in civil appeal No.16A/2009 by Additional Judge (Fast Track), Seondah to the Court of II Additional District Judge, Datia District Datia affirming the judgment and decree dated 30/10/2009 passed in civil suit No.6A/2008 by Additional Civil Judge, ClassI, Seondah under section 100 of CPC whereby plaintiff's suit for declaration and permanent injunction has been dismissed.

(2.) ADMITTED facts are that plaintiff/appellant and defendants'/respondents' No.1, 2, 6 and 7 are members of joint Hindu family and the suit land is an ancestral property falling in various survey numbers as described in paragraph 2 of judgment of first appellate Court situated in village Seondah, District Datia. Grandfather of plaintiff, Darru had 03 sons from his first wife, namely; Ramchandra, Ishwari and Damru. After death of first wife, he contacted second marriage who came to his house alongwith two sons, Dharmendra and Baljit and defendant No.1/ Beti Bai is daughter of Baljit. Each brother had 1/3rd share of the suit land left behind by Darru. Damru had died issueless and his share is in dispute in the instant suit.

(3.) DARRU during his life time had given a separate house to Dharmendra and Baljit where they are living and earning their livelihood. After death of Baljit, his daughter, Beti Bai was rared up by Ramchandra, Ishwari and Damru and Dharmo. After about 1015 years of death of Darru, Ishwari had separated himself from Ramchandra and Damru. Plaintiff/appellant, Nathu is sole son of Ramchandra. He used to do cultivation over the agricultural land falling to the shares of his father, Ramchandra and uncle, Damru. After death of Damru, his widow Sabrani used to live with plaintiff and he used to cultivate the share of her agricultural land. After death of Sabrani, the plaintiff became owner to the entire agricultural land left behind by Ramchandra and Damru. It is further asserted in the plaint that defendant No.6, Prakash is son of plaintiff, Nathu but he separated himself and started living with inlaws who after death of Damru got executed a forged 'will' and on the strength of it, he manipulated revenue record in respect of land of Damru and mutated his name. That was objected to by defendant No.1/Beti Bai before the Sub Divisional Officer, Seondah by way of an appeal. The case was remanded back to Tahisldar, Seondah and vide order dated 06/09/1996, the land was mutated in the name of Beti Bai. Against the said order, the plaintiff/appellant and defendant, Prakash and his mother Gyasi Bai had filed an appeal. The appellate authority has again remanded the matter back vide order dated 31/03/1997. Thereafter, again Tahsildar, Seondah passed an order in favour of Beti Bai on 05/08/2000. Against hat order, an appeal was filed before the Sub Divisional Officer, Seondah and vide order dated 11/08/2000 mutation was cancelled and restrained the parties to part with or sell or otherwise to deal with the suit land. A review petition was filed before Collector, Datia against the said order and vide order dated 16/12/2001 it was dismissed. During this period, defendant No.1, Beti Bai had sold the suit land falling in survey Nos.71, 74 and 75 to the extent of 1/3rd share thereof in favour of defendant No.2, Radhe admeasuring 0.48 hectare and defendants No.3, 4 and 5, Chiman, Mahesh and Shyamu respectively admeasuring 0.16 hectare. The plaintiff claimed that he is in possession over the suit land for the last 20 years and, therefore, the aforesaid suit land is of his ownership and prayed for permanent injunction against the defendants'.