LACHCHHIRAM AND ANOTHER Vs. IMRATI AND OTHERS

JUDGEMENT

(1.) This first appeal has been filed under section 96 of Code of Civil Procedure against the judgment dated 29.8.2002 passed by First Additional District Judge, Dabra, District Gwalior in Civil Suit No.8-A of2000 by which, the civil suit filed by the plaintiffs/respoftdents for declaration of title and permanent injunction has been decreed.

(2.) The admitted facts of the case are that original plaintiff No. 1 Sarmania died during pendency of the civil suit whereas, respondent No.2 is the legal heir of the plaintiff No.2 Devi Singh who died during pendency of this appeal.

(3.) Necessary facts for the disposal of the present appeal in short are that the plaintiffs filed a civil suit for declaration of title and permanent injunction. Original plaintiff Sarmania and Devi Singh were mother and son. Agricultural land bearing Araji No.632/1 area 1.54 Hectares whose new Survey No. is 651 area 0.98 hectares, Survey No.652 area 0.29 hectares and Survey No.654 area 0.29 Hectares total area 1.54 hectares belonged to the plaintiff No. 1 Sarmania. The aforesaid land is situated in village Janakpur Tahsil Dabra, District Gwalior. It was pleaded that after the death of husband of plaintiff No. 1 Sarmania, the plaintiff No. 1 remained in possession and became title holder of the said land. Accordingly, it was pleaded that the plaintiffs are in possession of the said land being owner of the land in dispute. It was further pleaded that the plaintiff No. 1 has already sold the agricultural land bearing Survey Nos.354/2,381/1 and 651/2 by registered sale deed dated 30.9.1991 to the real brother of the defendant No. 1 namely Hazari Singh which is not subject matter of the dispute. But since this fact is necessary for the just decision of the case, therefore, it was mentioned in the plaint. It was further pleaded by the plaintiffs that the plaintiff No.1 had come to Tahsil Dabra on 30.9.1991 for executing the sale deed in favour of Hazari Singh in respect of the land mentioned above. At that time, the defendant No. 1 in connivance with his real brother Hazari Singh got the thumb impression of the plaintiff No. 1 on an additional stamp paper and thereafter got a general power of attorney typed on the said stamp paper and got the said power of attorney notarized on 30.9.1991. It was further pleaded that when the plaintiff No. 1 had gone to Dabra to execute the sale deed in favour of Hazari Singh real brother of defendant No. 1 ,then, there was no need for the plaintiff No.1 to execute the general power of attorney. Subsequently, the defendant No.1 executed a sale deed dated 14.2.2000 on the basis of the forged power of attorney dated 30.9.1991 in favour of defendant No.2 who is son of Hazari Singh. It was pleaded that the plaintiff No. 1 had never authorized defendant No. 1 to execute any sale deed in favour of defendant No.2 and if the intention of the plaintiffs was to sell the land, then they could have got the sale deed executed in favour of the defendant No.1 on 30.9.1991 itself. Thus, it was pleaded that the sale deed dated 14.2.2000 executed by the defendant No. 1 in favour of defendant No.2 is invalid because, the said sale deed has been executed on the strength of a forged power of attorney dated 30.9.1991. It was further pleaded that the plaintiff No. 1 had never given any authority to the appellant No.1 to execute the sale deed. No consideration amount was paid by the defendant No. 1 to the plaintiff No. 1 and the plaintiffs have never handed over possession of the land in dispute to the defendants. It was further pleaded that about 8 days prior to the filing of the suit, the defendants tried to cultivate the land and they also threatened the plaintiffs that since the sale deed has been executed, therefore, they will not allow the plaintiffs to cultivate the land. Accordingly, it was submitted that cause of action for filing the suit arose on 23.5.2000. As the State was made proforma defendant and no prayer was made against the State, therefore, no notice is required to be served under section 80 of CPC.