ANANDILAL JHARIYA Vs. RAMLAL JHARIYA

JUDGEMENT

(1.) The appellants/defendants have directed this appeal under Section 100 of C. P. C. being aggrieved by the judgment and decree dated 22-7-2008 passed by 3rd Additional District Judge, Jabalpur in Civil Regular Appeal No. 7-A/2008 affirming the judgment and decree dated 30- 6-2006 passed by, 3rd Civil Judge, Class-I, Jabalpur in Civil Original Suit No. 494-A/ 2003 decreeing the, suit of respondent No. 1 for declaration and perpetual injunction against them.

(2.) The facts giving rise to this appeal in short are that the respondent No. 1 herein filed the aforesaid suit against the appellants with respect of land bearing Survey No. 151 area 1.02 hector situated at village Tikariya declaring him to be the Bhoomi-swami of it and also for issuing perpetual injunction restraining the appellants from interfering in his possession of such land. As per the averments of the plaint the aforesaid land was initially belonged to one Fagulal with whom the respondent No. 1 was lived since 30-35 years. Late Fagulal had one daughter namely Tulsabai, who got married with appellant No. 1 Anandilal but, soon after the marriage due to some differences the divorce took place between them in accordance with the prevailed custom of their community and since then she was residing with her father late Fagulal. Said Fagulal by executing a registered Will on 20-7-1981 had bequeathed his aforesaid land to the respondent No. 1. Fagulal died on 1-10-1982 while Tulsabai died on 29-11-1995. After the death of Fagulal respondent No. 1 acquired the title over the land on the strength of aforesaid Will. It is also stated that after the death of Fagulal the name of Tulsabai was mutated in the revenue record and after her death, on the strength of said Will respondent No. 1 applied for mutation of his name in the revenue record, the same was accepted by the Gram Panchayat and the land was mutated in his name. Subsequently, the appellant No. 1 filed an application for mutation of his name on the aforesaid land on 7-3-1997 in the Court of Naib Tahsildar, on which some report was called from the Gram Panchayat. According to which the respondent No. 1 acquired the title over the disputed land on the strength of the aforesaid Will. In such premises respondent No. 1 also filed objection in such mutation case. Later the appellant No. 1 got dismissed the mutation proceeding for want of prosecution on 20-7-1999. Subsequent to such dismissal by concealing such fact of earlier dismissal the appellants filed a fresh application for mutation of his name in the record of rights. The same was entertained by the revenue Court and without extending any opportunity of hearing to respondent No. 1 the land was mutated in the name of appellant No. 1. Such order being ex-parte was ab initio void. Thereafter, respondent No. 1 filed an application for mutation of his name, on dismissing the same he approached the Sub-Divisional Office in appeal, in pendency of such appeal some interim stay was also granted. In spite of that appellant No. 1 has disposed of the disputed land vide sale deed dated 1-7-1999 in favour of appellant No. 2 while the appellant No. 1 did not have any right in the disputed property to execute the alleged sale deed in favour of the appellant No. 2; as the title of the property was already vested on the strength of the Will in favour of the respondent No. 1. In such premises, it is contended that the aforesaid sale deed being ab initio void document is not binding against the respondent No. 1. With these averments, the aforesaid suit is filed by the appellants.

(3.) In the joint written statement of the appellants, it is stated that respondent No. 1/plaintiff was never resided with the deceased Fagulal. Fagulal was residing in his own house with his daughter Smt Tulsabai. Said Tulsabai being wife of appellant No. 1 was working as nurse in a clinic of some doctor and after the death of her father Fagulal she became the Kotwar of the village at his place and while serving on such post she died. It was also stated that appellant No. 1 neither deserted Tulsabai nor got any separation from her. The alleged Will in favour of respondent No. 1 was never executed by Fagulal and mere on account of its registration it does not have any legal sanctity. Some other Will of Fagulal dated 1-8-1979 is also on record. In view of inconsistency in the averments of both the Wills the alleged Will dated 20-7-1981, projected by respondent No.1 appears to be forged and fabricated document. The disputed land was neither recorded in the name of respondent No. 1 nor he remained in possession of the same. After death of Fagulal the name of Tulsabai was mutated and on her demise the name of appellant No. 1 is legally mutated as her legal representative and he rightly executed the sale deed in favour of the appellant No. 2; as he inherited such right from his wife Tulsabai. The impugned suit was filed by the respondent No. 1 on the strength of false and fabricated Will while the respondent No. 1 did not have any right, interest or title over the disputed land. In such premises the prayer for dismissal of the suit was made.