BABULAL TIWARI Vs. JABBAR SINGH

JUDGEMENT

(1.) This appeal under Section 96 of the C.P.C has been filed to challenge the judgment dated 26.08.1995 passed by III A.D.J, Chhindwara in Civil Suit No. 31A/88 wherein the suit for declaration, possession and mense profit has been dismissed.

(2.) The respondents failed to mark appearance despite service as mentioned in the order dated 13.09.2017 and despite warning on 18.09.2017, none appeared on behalf of the respondents.

(3.) It is not disputed that the respondent/defendant Nos. 1 and 2 are the nephews (sons of brother Shankar) of the original plaintiff (father of the appellants). Respondent Nos. 3, 4 are the daughter and son of late Sabooti Bai who was the sister of the original plaintiff- late Tara. Hence, are the nephew and niece of original plaintiff- Tara. The sole owner of the disputed property agricultural land and house belonged to plaintiff- Tara. Tara executed a sale/gift deed on 25.03.1957 in favour of defendant No. 1 and his father Shankar and transferred the properties with the condition that they will maintain Tara till his death. A condition was also imposed that if Shankar and defendant/respondent No. 1 failed to maintain Tara, he will have the right to re-possess and regain the property. On the basis of allegations that Shankar and defendant/respondent No. 1 failed to maintain Tara, Civil Suit No. 9/60 was filed before the Civil Court, Chhindwara wherein the decree was passed in favour of Tara. Subsequent thereto, the said property was again transferred to Sabooti Bai, the ancestor of respondent/defendant No. 3, 4 wherein same conditions were imposed. An agreement Ex. P/4 was also executed and the possession was given to her. Sabooti Bai passed away on 03.10.1966. The appellant was then mutated in the name of respondent/defendant Nos. 3, 4. Respondent Nos. 3, 4 transferred the said property to respondent Nos. 1, 2 on 31.10.1967 and handed over the possession of the disputed property. Respondent Nos. 1, 2 continued their possession. Respondent Nos. 1, 2 executed an agreement on 31.10.1967 with undertaking to maintain Tara till his life.