SHEETAL PRASAD Vs. DIPAK KUMAR

JUDGEMENT

(1.) SHORT facts leading to the appeal are that the plaintiffs-respondents instituted a suit for declaration of title and restoration of possession in respect of an agricultural land comprised in Survey No. 17 in area 12 biswa, Survey No. 18 in area 1 bigha 6 biswa, Survey No. 86 in area 1 bigha 6 biswa, Survey No. 88 in area 12 biswa, Survey No. 90 in area 10 biswa, Survey No. 494 in area 14 biswa, Survey No.504 in area 1 bigha, Survey No.505 in area 10 biswa, Survey No. 539 in area 1 biswa, Survey No. 645 in area 6 biswa, Survey No. 646 in area 13 biswa, Survey No. 862 in area 8 bigha 13 biswa, Survey No. 871 in area 1 bigha 17 biswa, Survey No. 876 in area 7 bigha 4 biswa, Survey No. 877 in area 6 biswa, Survey No. 880 in area 5 bigha 18 biswa, Survey No. 882 in area 5 bigha 17 biswa, Survey No. 899 in area 4 biswa, Survey No. 882/1077 in area 10 biswa in all area 37 bigha 5 biswa situated at village Vasudha, Tahsil Nagaud, Distt. Satna. The plaintiffs stated that the aforesaid disputed land was held by Raghunath Prasad, the deceased husband of plaintiff No. 2 in his bhumiswami rights. Respondent No. 2 being wife of Raghunath Prasad was in cultivating possession of the disputed land with her husband. After the death of Raghunath Prasad on 14.12.1978, the disputed land devolved upon the plaintiff No. 2 who continued in its cultivating possession. Raghunath Prasad also had a house which, too, devolved upon her after his death. It has been pleaded in the plaint that a partition had taken place between Raghunath Prasad and his two brothers about 20-22 years back and all the three were holding separate lands in accordance with the partition and were cultivating the same separately. After the death of Raghunath Prasad, his widow, the plaintiff No. 2 submitted an application to seek mutation in her favour in place of Raghunath Prasad. This was objected to by the defendant No. 1 and 2 on the basis of an alleged will which was disbelieved by the Tahsildar, Nagaud. Mutation in favour of the plaintiff No. 2 was allowed and her name was entered in the revenue record in place of Raghunath Prasad as bhumiswami. Thereafter, she sold the disputed property and handed over its possession to plaintiff No.1 vide registered sale deed dated 24.12.1981. Plaintiff No. 1 submitted an application for mutation in his favour on the basis of the aforesaid purchase which was again objected to by the defendant No. 1 and 2 on the basis of the alleged will. The objection was again rejected by the Tahsildar, Nagaud. It is expressly and specifically stated in the plaint that Raghunath Prasad did not execute any will in his life time. He suffered a heart attack and died within few hours. The alleged will has been prepared by defendant No. 1 and 2 in a forged and fraudulent manner. However, the defendant No. 1 and 2 forcibly tried to dispossess the plaintiffs in the month of July, 1983 which was informed to the police. On intervention by police, the defendant No. 1 and 2 gave in writing that they will not cause interference in the possession of the plaintiff No. 1 and 2 over the suit land. Thereafter, again on 26.10.1984, the defendants interfered in the plaintiffs' possession. So, the plaintiffs instituted a suit for declaration and permanent injunction. However, the plaintiffs were forcibly dispossessed by the defendants during the pendency of the suit which was reported with the police on 26.11.1985. Consequently, the plaintiffs made a prayer for restoration of possession also

(2.) DEFENDANTS -appellants No. 1 to 4 submitted a joint written statement denying the claim of the plaintiffs. It has been denied that the disputed property was allotted to Raghunath Prasad. It has been pleaded in paragraph-4 of the written statement that the disputed property was purchased by Badri Prasad in the name of Raghunath Prasad being the eldest son for making it convenient to obtain loan from the Government against it. Since, Raghunath Prasad had no issue, he relinquished his righ s in favour of defendant No. 1 and 2 with respect to all the agricultural lanes standing in the name of Badri Prasad and handed over the disputed land to defendant No. 1 and 2 for management. Thereafter, on 14.12.1978 Raghunath Prasad executed a will in favour of respondent No. 1 and 2. it has been further stated that the order of mutation in favour of the plaintif's has been set aside in appeal by the S.D.O. and the matter has been remanded back. Thus, it is contended that the plaintiff No. 2 did not inherit the suit property and was never in its possession. Consequently, the plaintiff No. 1 did not acquire any right on the basis of the alleged registered sale deed. it has been further pleaded that the defendant No. 1 and 2 have been continuing in possession from the life time of Raghunath Prasad and did not make any forcible possession over the disputed property. In view of the aforesai I, a prayer has been made for dismissal of the suit.

(3.) AGGRIEVED by the aforesaid, the defendants-appellants have preferred the present appeal wherein the plaintiffs-respondents have submitted cross objections under Order 41 Rule 22 C.P.C. with respect to the findings recorded against them and prayed for modification of the decree accordingly.