SITARAM Vs. RADHESHYAM

JUDGEMENT

(1.) This is second appeal filed under Section 100 of the Code of Civil Procedure by the appellant/defendant against the judgment and decree dated 3.1.1995 passed by Additional District Judge to the Court of District Judge, Dhar in regular Civil Appeal No.22A/86, whereby dismissed the appeal of the appellant and affirmed the decree dated 23.7.1986 granted by trial Court, i.e., Civil Judge Class-1, Kuchhi in Civil SuitNo.315A/84.

(2.) This second appeal was admitted on thefollowing questions of law :- "Whether in the present matter State of MP was a necessary party?"

(3.) The brief facts of the case are that the appellant / defendant and respondent / plaintiff are the real brothers. Respondent Radheshyam filed a suit for injunction stating therein that the agricultural land bearing survey nos. 209, 347, 348, 350, 360 and 361, having total area of 6.993 hect. situated at village Lohari Tehsil Kuchhi, was partitioned between both the brothers in the year of 1974 and the aforesaid land came into the share of plaintiff. After the partition the plaintiff is having possession over the entire land and doing agricultural operations thereon. It was further stated that the character of the appellant/defendant was not good and he has destroyed and transferred the properties, i.e., one house and agricultural land, which was given to him in partition and now he is not having any means of livelihood, therefore, he has started interfering in the property, which is in possession of the plaintiff. A prayer was made to grant a decree for permanent injunction in favour of the respondent/plaintiff. In the written statement it was admitted that the partition took place in 1974 but it was pleaded that half of the suit land was given in the share to the appellant/defendant and the defendant is also having possession over half of the land, therefore, the suit is bad in law and no decree for injunction can be granted on the land which is in possession of the appellant. The issues were framed, evidence of the parties was recorded and trial Court decreed the suit, against which First Appeal was filed and the same was also dismissed.