NARAYAN SINGH DIED Vs. AATAM SINGH

JUDGEMENT

(1.) This miscellaneous appeal under Order 43 Rule 1(u) of the Code of Civil Procedure has been filed by the appellants-defendants against the judgment and decree dtd. 15/10/2024 passed by the First District Judge, Karera, District Shivpuri (hereinafter referred to as the first appellate Court) in Regular Civil Appeal No. 46/2022, whereby the appeal preferred by respondent No.1-plaintiff was allowed, the judgment and decree dtd. 31/10/2022 passed by the Second Civil Judge, Senior Division, Karera, District Shivpuri (hereinafter referred to as the trial Court) in Regular Civil Suit No. 63-A of 2019 was set aside, and the matter was remanded to the trial Court with a direction to decide the suit afresh after recording evidence of both parties on amended pleadings.

(2.) Brief facts necessary for adjudication of the present appeal are that respondent No.1-plaintiff filed a suit for declaration and injunction against Narayan Singh and others before the trial Court on the ground that the disputed land comprises half share of land bearing Survey No.538 admeasuring 2.15 hectare, which was purchased vide registered sale deed dtd. 24/6/1998 jointly by the plaintiff and defendant No.1. After purchase, names of the plaintiff and defendant No.1 were mutated in the revenue records and both were cultivating the disputed land. It was further pleaded that defendant No.2 had neither title nor possession over the disputed land and had never remained in possession earlier. No notice of partition was served upon the plaintiff by the Court of Tehsildar and defendant No.1, in collusion with the Patwari and Tehsildar, managed to get his name mutated over the entire land. It was alleged that signatures of the plaintiff were obtained by playing fraud during partition proceedings under the pretext of KCC documents. It was further pleaded that defendant No.1 sold the disputed land to defendant No.2 vide registered sale deed dtd. 15/5/2018, pursuant to which defendant No.2 got his name mutated in the revenue records. It was also alleged that defendant No.1 had mortgaged the disputed land and obtained a loan and that defendant No.2 and his family members forcibly entered into possession and cultivation of the disputed land, which constrained the plaintiff to file the suit.

(3.) Defendant Nos.1 and 2 filed a joint written statement denying the averments made in the plaint. It was pleaded that the entire sale consideration was paid by defendant No.1 alone and that he alone remained in possession of the disputed land. It was further pleaded that after execution of the sale deed, defendant No.2 is in possession of the disputed land. It was also pleaded that a consent agreement dtd. 12/5/2009 was executed by the plaintiff in presence of witnesses, wherein the loan of the bank was paid by defendant No.1 and the mortgaged tractor and machinery were handed over to the plaintiff, and in lieu thereof, the plaintiff gave consent for mutation of defendant No.1 over the disputed land, acknowledging that he had no right, title or interest therein. It was further pleaded that partition was carried out in accordance with law and with full knowledge of the plaintiff, but with an intention to take undue advantage, the plaintiff deliberately concealed the same. It was also pleaded that the suit was barred by limitation, that the plaintiff was not in possession of the disputed land, that no relief of possession was sought, and therefore the suit was not maintainable.