MAYARAM Vs. SHRIMATI SITABAIB

JUDGEMENT

(1.) This appeal has been filed by the defendant under the provisions of Order 43 Rule 1(u) of the Code of Civil Procedure against the order of remand dtd. 27/2/2013 passed by the First Appellate Court in Civil Appeal No. 23A/2011.

(2.) The plaintiffs who are the wife and sons of Mayaram had filed a suit for declaration and permanent injunction with respect to the agricultural land situated in Patwari Halka No. 24 bearing survey No. 370/1 admeasuring 2.04 hectare of village Jalwa, Tehsil Ghatia, District Ujjain. The case of the plaintiffs is that property in dispute originally belonged to Late Siddhaji who got this property from his ancestors. The husband of plaintiff No.1 and father of plaintiffs No. 2 and 3 - Mayaram is the son of Late Sidhhaji. Mayaram solemnized marriage with Sajju Bai. As there was no issue from Sajju Bai, he solemnized second marriage with plaintiff No. 1- Sitabai. After second marriage of Mayaram, both the wives i.e. Sajju Bai and Sita Bai gave birth to four and two children, respectively. The plaintiffs (respondents No. 1 to 3 herein) stated in their plaint that there was a total of 8.25 hectare agricultural land of four different survey numbers in the name of Late Sidhhaji. Apart from this, in village Jalwa there is one residential dwelling of plaintiffs and defendant No. 1 and 2. In the north part of the said house plaintiffs were residing and the first wife was residing with defendant No.1. In view of the fact that after second marriage both the wives gave birth to children, the father of Mayaram i.e. Late Sidhhaji executed a family partition in which land of survey No. 370/1 admeasuring 2.04 hectare i.e. the suit property was given to respondents No. 1 to 3/plaintiffs, possession whereof was also given and rest of the agricultural land was given in the share of defendant No. 1 Mayaram and his first wife along with their children.

(3.) It was also stated in the plaint that in the year of 2003, taking advantage old age of Late Sidhhaji, respondent No. 1 got an agreement to sale executed by him in favour of one Tahir Hussain and in view of the same, an effort was made to dispossess plaintiffs because of which the suit for permanent injunction was filed. However, as it was a dispute amongst the members of the family, the matter was resolved by settlement under which the deed of partition was executed between Late Sidhhaji and plaintiff No.1. The defendants No. 2 and 3 executed a consent deed for the aforesaid partition. As the matter was settled amongst the members of the family, the aforesaid suit was not pressed, thus the same was dismissed for want of prosecution and since then, the plaintiffs were in possession of the aforesaid suit property.