LAXMI PRASAD Vs. GANGA BAI

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the judgment of affirmance. Plaintiff file the suit for declaration that he is the Bhusmiswami of land having total area of 9.187 acres left by his brother Shivinandan and the defendants, who are also brother or heir of predeceased brother of Shivnandan, have no right and title over the same. Further relief sought for by the plaintiff is, for recovery of possession and mesne profit. Civil Judge, Class II, Lakhnadon by its judgment and decree dated 20.10.82 decreed the suit. Defendant Nos. 3, 4 and 7 aggrieved by the same, preferred C. A. No 47 -A 79 and Additional District Judge Seoni, by its judgment and decree dated 23rd September 1985 allowed the appeal and set aside the judgment and decree of the Court below. Aggrieved by the same plaintiff has preferred this appeal under Section 100 of the Code of Civil Procedure.

(2.) THE case of the Plaintiff is that his father Ganesh Prasad died in the year 1937 and after his death partition between the members of the joint family took place and the names of the brothers were registered in the revenue record. It is an admitted position that one of the brothers namely Shivnandan died issueless on 2.9.78 and his wife has pre -deceased him. It is an established fact that a proceeding was initiated against the aforesaid Shivnandan under the provisions of M. P. Ceiling on Agriculture Holdings Act, 1980 and the Competent Authority under the said Act, after negativing the contention of Shivnandan and plaintiff that they are joint, declared 11.62 Acres of land of Shivnandan, to be surplus and directed for its vesting in the State. For setting aside the aforesaid order of the Competent Authority, Plaintiff Laxmi Prasad and Shivnandan filed Civil Suit No. 47 -A /79 before the Civil Judge, Class II, Lakhnadon and by judgment and decree dated 20.10.82 the Civil Court held that the property of the plaintiff and Shivnandan was joint and the order of the Competent Authority declaring the land to be surplus is illegal and Shivnandan did not possess land in excess of the ceiling area. It is further an admitted position that Shivnandan before his death, on 2.9.78 executed 3 sale -deeds in favour of different persons. It is further an admitted position that after the death of Shivnandan, land recorded in his name, has been recorded in the name of the plaintiff and his other brothers and heirs and legal representative of his pre -deceased brother.

(3.) DEFENDANT no. 1 kewal Prasad, defendant No. 2 Balbhadra Prasad and defendant no. 5 Bhagwan Prasad filed their written statement and supported the case of the plaintiff but stated that they are not is possession of his disputed land and accordingly their names be deleted from the plaint. Defendant no. 4 Badri, defendant no. 3 Moolchand and defendant no. 6 Kamta Prasad have stated in their written statement that all the brothers have come in possession of their respective shares after partition which has taken place after the death of their father Ganesh and their names have been separately recorded in the revenue records. It has been further stated that plaintiff as also Late Shivnandan used to cultivate their land separately which fell to their share in partition and never became joint. It has also been stated that 65 acres of land which he got in partition was his own and out of which he has sold land on 23.6.91 by various sale deeds to different persons. It has been further stated by these defendants that on 7.3.84 Shivnandan had only 59 acres of land. It has also been stated that they are not aware of any proceeding being initiated against Shivnandan under the provisions of M. P. Ceiling on Agriculture Holdings, Act and the suit brought by the plaintiff and Shivnandan was to protect the land from being declared as surplus land. It has been further stated that the judgment and decree of the Civil Court, in which they were not parties, are not binding on them and the same does not operate and resjudicata. It has been also stated that after the death of Shivnandan they being his heirs, are entitled to succeed to his property. It has been further stated that after the death of Shivnandan, the expenses of all the ceremony were spent jointly.