JHITRA Vs. KAILASH

JUDGEMENT

(1.) The appellants/defendants have filed this Second Appeal against the following judgments (i) judgment and decree dtd. 13/07/2023 passed in RCA No.3-A/2022 and RCA No.4-A/2021 by the District Judge, Petlawad, District-Jhabua whereby the learned first appellate Court has dismissed the appeals bearing RCA No.4- A/2021 filed by the appellants/defendants and has allowed the appeal bearing RCA No.3-A/2022 filed by the respondent No.1/plaintiff challenging the (ii) judgment and decree dtd. 30/11/2021 passed by Civil Judge, Senior Division, Petlawad, District-Jhabua in RCS No.149-A/2015 whereby the learned trial Court partly decreed the suit filed by the respondent No.1/plaintiff.

(2.) The respondent No.1/plaintiff-Kailash filed a civil suit No.149-A/2015 seeking declaration of title of suit property situated at survey No.1250 area 1.09 hectare and survey No.1254 area 0.98 hectare at village-Raipura, Tehsil-Petlawad, District-Jhabua and also sought permanent injunction with regard to the suit property and to disburse the mutation done in favour of defendants No.1 and 2 to be declared as null and void and to grant permanent injunction and not to disburse the compensation of acquired land by defendants No.5 to 7 to defendants No.1 and 2 and also as per amendment allowed in M.A. No.16/2016 sought the sale-deed dtd. 28/12/2018 to be declared as null and void. It was averred in the plaint that Gamna, who was the elder brother of Nanuram (father of the present plaintiff/respondent No.1) purchased the disputed land from Jhitra, Amra and Narayan through registered sale-deed dtd. 14/04/1966 executed in favour of Gamna. The name of Gamna was recorded in the revenue records as Bhumiswami. After the death of Gamna and his wife Tulsabai being issue-less, the suit land was mutated in the name of plaintiff - Kailash in the revenue records by the Tehsildar claiming that he is the adopted son of the Gamna as well as nearest legal representative of the deceased Gamna and Tulsabai. Appellants/Defendants No.1 and 2 filed an appeal before SDO (Revenue) against the mutation of plaintiff's name in the revenue record. The said appeal was allowed directing the Tehsildar for rehearing of the matter. Thereafter, plaintiff filed an appeal against the order dtd. 29/05/2012 before Commissioner, Revenue and the said appeal was dismissed on the ground that the civil suit is pending between the parties before the Civil Court. A revision was preferred by the plaintiff before Revenue Board, which was dismissed.

(3.) In the civil suit the appellants/defendants filed their written statement wherein admitted the facts and denied the case of respondent No.1/plaintiff. Thereafter, the learned trial Court framed nine issues which are as follows :-