TIKA RAM Vs. RAJENDRA SINGH AND ORS.

JUDGEMENT

(1.) THIS appeal by plaintiff is directed against the judgment and decree passed by the first appellate court dated 30/6/2005 in civil appeal No. 106A/2004 confirming the judgment and decree passed by the trial court dated 20/9/2004 in civil suit No. 61A/2003. Plaintiff's suit for declaration and permanent injunction has been dismissed.

(2.) PLAINTIFF by filing a suit inter alia contended that the land, described in para 1 of the impugned judgment, situated in village Tilikheda, Tahsil and District Guna (hereinafter referred to as 'the suit land') is of his ownership and possession. Defendant no.2 has no right, title and interest over the suit land, therefore, the sale deed executed by him in favour of defendant no.3 in respect of the suit land be also declared as null and void with further relief of injunction against defendant no.1 not to interfere in possession of the plaintiff. In support of his assertion as regards right, title and interest over the suit land, it is contended that the suit land was originally of the ownership and possession of one Tulsiram. His name was duly recorded in the revenue records. After death of Tulsiram, plaintiff being the natural heir became the exclusive owner of the suit land, however, in Samvat 2020 defendant no.2 -Ramkishan manipulated his name in survey nos.47, 62, 68, 495 and 499 to the extent of half of the aforesaid land without notice and knowledge to the plaintiff, however, plaintiff continued to be in possession of the suit land. The claim of Ramkishan that he is the son of Mardan Singh was factually incorrect. In fact Mardan Singh had one legally wedded wife. Tulsiram; father of the plaintiff, had born out of the said wedlock. After death of first wife; mother of Tulsiram, Mardan Singh had kept one lady, namely, Jadiyabai and Jadiyabai had brought Ramkishan with her, who was dependent in the family of the plaintiff. As such, he not being the son of Mardan Singh had no right to claim share in the suit property, therefore, mutation recorded in the name of Ramkishan to the extent of half share is illegal.

(3.) DEFENDANTS no.1, 2, 4, 5 and 6 have filed separate written statements and denied plaint allegations. It is submitted that defendant no.2 was the son of Mardan Singh born out of cohabitation of Mardan Singh and Jadiyabai. It is denied that Jadiyabai had brought Ramkishan with her when she was kept by Mardan Singh. It is denied that the suit land is of exclusive ownership and possession of Tulsiram. It is denied that by illegal means defendant no.2 manipulated the entries in the revenue records and got his name mutated in the revenue records to the extent of half of the suit land. As regards the suit land falling in survey no.67 it is further submitted that though the said land is of the joint ownership of plaintiff and defendant no.2, but it is denied that there was no partition effected between the two. As regards family tree, it is submitted that Mardan Singh was blessed with father of plaintiff Tulsiram from his first wife -Balo Bai and after death of Balo Bai, Mardan Singh married to Jadiyabai and out of their wedlock Koshiyabai born and thereafter another girl child born, who died in early age, and thereafter defendant no.2 born and, therefore, defendant no.2 is the legitimate son of Mardan Singh. It is submitted that father of plaintiff and defendant no.2 are brothers. Except the land of survey no.67, remaining suit land is the property of joint Hindu family where both Tulsiram and Ramkishan had equal share. Accordingly, the suit land is recorded in revenue records. After death of Tulsiram, in the half share of suit land name of plaintiff and his sister -Rambai was recorded and in the remaining half share name of defendant no.2 continued. After partition having been effected amongst the plaintiff and his sister and defendant no.2 the suit land had fallen to the share of defendant no.2 and accordingly, mutation was done recording separate partitioned land. Likewise, land of survey no.67 had also been partitioned between the two and accordingly, revenue records were corrected. Defendant no.2 out of land falling in survey no.47/1 rakwa 0.439 hectare, has sold land admeasuring 0.314 hectare to Hari Singh by registered sale deed in the year 1991. No objection whatsoever was raised by the plaintiff. Now the defendant no.2 is left with only land admeasuring 0.125 hectare. Likewise, it is submitted that different parcels of the land of the title and possession of defendant no.2 have been sold to different buyers. With the aforesaid pleadings, it is prayed that the suit be dismissed.