BHERU Vs. NATTHU

JUDGEMENT

(1.) THIS second appeal under Section 100 of the Code of Civil Procedure is filed against the judgment and decree passed by learned AJ to the Court of 1st ADJ, Badwani in Civil Appeal No.5A/2011 on 26.11.2013 whereby the judgment and decree passed by 1st Civil Judge, ClassI, Badwani in Civil Suit No.58A/05 dated 06.05.2011 has been affirmed.

(2.) BRIEF facts of this case are that the Respondent No.1/plaintiff had filed a suit for declaration of title pertaining to the land bearing Survey Nos.1/2, 8/1 admeasuring 4.06 acres situated at Village Kari [in brief "the suit land"] stating that appellant/defendant No.1 is elder brother of the plaintiff and hence trusting him plaintiff had handed over the suit land to defendant No.1 for cultivating in the year 198283 because the plaintiff had become weak and sick. In first week of July, 1997 the plaintiff asked the defendant No.1 to complete the sowing then he started making excuses. Thereafter the plaintiff took information and learnt from the Tehsil Office that by filing an application under Section 178 of the M. P. Land Revenue Code [in brief "MPLRC"] the defendant No.1 had taken action and on the basis of alleged partition in the year 1983, defendant No.1 had got the land recorded in his name; whereas the plaintiff was not aware of any such proceedings. Thus, the suit land stood in the name of defendant No.1 fraudulently indicating him as the owner and in possession of the same. The plaintiff, therefore, filed a suit for settingaside the proceedings on the basis of the fraud that was played on him and also prayed for return of the possession.

(3.) THE defendant No.1 resisted the suit on the ground that the suit land was ancestral land and the same was in his possession throughout, and the plaintiff had already transferred the suit land to one Gopal Sirvi and the plaintiff had received the amount. Subsequently the amount was returned by the defendant No.1 to the said Gopal Sirvi. An application under Section 178 of MPLRC was filed before the Tehsildar, which was registered as Case No.27A/27/8283 and as per order dated 16.02.1983 the suit land was came into the share of defendant No.1 and his name was mutated in the revenue record. It was well within the knowledge of the plaintiff that the defendant No.1 was cultivating the suit land. The plaintiff has malafidely filed the suit which is time barred. The plaintiff has not filed any appeal before the Revenue Court against the order passed by the Tehsildar. The civil suit is barred by principle of res judicata.