PRAVEEN TIWARI Vs. ANITA UPADHYAY

JUDGEMENT

(1.) This Second Appeal, under Sec. 100 of CPC has been filed against the judgment and decree dtd. 19/11/2019 passed by I Additional District Judge, Dabra, District Gwalior (M.P.) in RCA No.15/2017, thereby affirming the judgment and decree dtd. 27/2/2017 passed by I Civil Judge Class II, Bhitarwar, District Gwalior (M.P.) in Civil Suit No.04A/13.

(2.) Appellant is plaintiff who has lost from both the courts below.

(3.) It is the case of appellant that land bearing Survey Nos.711, 528, 529, 530 Min-2, 1679, 1680, 1683, 1684, 1690, 1829 Min-2, 2012 Min-3, 2089, 2382 Min1, 2516 Min-3, 2540, 2544, 236, 237, 262 and 2515/1 situated in village Sankhni, Tahsil Bhitarwar, District Gwalior (M.P.) and Survey No.72 Min-2, 109, 110 situated in village Jhau, Tahsil Bhitarwar, District Gwalior (M.P.) is the ancestral property of plaintiff and defendant No.1. After death of father of plaintiff and defendant No.1 namely late Vasudev Tiwari, it is alleged that plaintiff and defendant No.1 got 1/2 share each. However, defendant No.1 got her name mutated in the revenue records by claiming herself to be the sole legal representative, whereas plaintiff has 1/2 share in the property. It is the case of plaintiff that late Vasudev Tiwari was posted in Ujjain and was working in Postal Department. Mother of plaintiff, namely, Kamla @ Manorama who had already obtained divorce from her first husband was residing with her father. Vasudev Tiwari had projected himself to be a bachelor and offered to marry the mother of plaintiff which was accepted by her and accordingly, marriage of mother of plaintiff and late Vasudev Tiwari was performed in Mahakal Temple. Appellant was born out of the relationship of his mother Kamla @ Manorama and late Vasudev Tiwari. In his educational documents, name of father of appellant is mentioned as late Vasudev Tiwari. It was further claimed that late Vasudev Tiwari had never informed that defendant No.1 is his daughter and Kamla d/o Mayaram R/o Kankar is his wife. On 12/6/2011 when defendant No.1 came to attend the funeral of late Vasudev Tiwari, then plaintiff came to know about the said fact. It was further claimed that defendant No.1 and her mother had never resided with late Vasudev Tiwari, therefore, there was an undeclared severance of marital ties. However, it was admitted by plaintiff that Vasudev Tiwari is succeeded by plaintiff and defendant No.1 as his legal representatives. After death of Vasudev Tiwari, defendant No.1 as well as plaintiff and his mother filed an application for mutation of their names in respect of House No.439 FH situated in Indore and accordingly Indore Development Authority directed both the parties to obtain succession certificate. Accordingly, defendant No.1 without impleading plaintiff and his mother filed an application for grant of succession certificate which was registered as Case No.34/11. It was further stated that ex parte succession certificate obtained by defendant No.1 is of no use for her because it was the plaintiff who had performed all the last rites of Vasudev Tiwari. Plaintiff was appointed in the Postal Department in the Assistant Postal Cadre and in his appointment order the name of his father has been mentioned as late Vasudev Tiwari. Even in the marriage invitation card of plaintiff, name of father of plaintiff has been mentioned as late Vasudev Tiwari. Furthermore, late Vasudev Tiwari had also executed an affidavit on 20/1/2009 thereby declaring plaintiff to be his son. Even otherwise, plaintiff was carrying out the agricultural activities on the disputed property during the lifetime of his father late Vasudev Tiwari. Since defendant No.1 had got her name mutated in a clandestine manner, therefore, when plaintiff filed an appeal before SDO Bhitarwar, it was dismissed, against which further appeal is pending in the Court of Additional Commissioner, Gwalior Division Gwalior. It was further alleged that defendant No.1 by taking advantage of mutation of her name in the revenue records is trying to alienate the property whereas plaintiff is in physical possession of the land in dispute. It was further claimed that plaintiff has 1/2 share in the land in dispute.