RADHESHYAM Vs. ARVIND KUMAR

JUDGEMENT

(1.) With consent of both the parties, the appeal is heard at motion stage.

(2.) This Second appeal under Sec. 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellant against the impugned judgment and decree dtd. 21/7/2022 passed by the District Judge, (Camp Court), Sanawad, District West Nimar, Mandleshwar in Regular Civil Appeal No. 47/2020 confirming the Judgment and decree dtd. 16/4/2019 passed by 2nd Civil Judge, Class - II, in Civil Suit R.C.S.A. No. 11-A/2017 whereby the learned trial Court dismissed the plaintiff's suit for declaration and perpetual injunction.

(3.) Brief facts of the case are that appellant/plaintiff filed a suit on 11/4/2017 for declaration of title and permanent injunction with prayer for change of mutation entry stated that suit land of survey no.68/2 Rakba 1.426 hectare of Village Rupkheda, Tehsil Sanawad was purchased on 10/12/1974 by three brothers namely plaintiff Radheshyam, Omprakash and respondent no. 1/defendant Arvind Kumar. Respondent no. 1/defendant joined government service in the year 1983 and he was out of Sanawad from the year 1977. Father Champalal had executed a partition between the three brothers and himself, a memorandum of partition was also executed on 22/5/1989. In the said partition appellant/plaintiff Radheshyam got the suit land and therefore respondent no. 1/defendant had no right remaining over the land. On the basis of said memorandum of partition, name of appellant/plaintiff Radheshyam was mutated in revenue records on 15/6/1989 to which defendant/respondent no.1 never objected. The respondent no.1/defendant on 30/3/2015 has filed an application for mutating his name also with his brother appellant/plaintiff Radheshyam which was dismissed and an appeal was filed before SDO which was allowed.