BUDHOO Vs. CHIRONJA BAI

JUDGEMENT

(1.) THE appellant/plaintiff has directed this appeal under section 100 of the CPC being aggrieved by the judgment and decree dated 30. 11. 94 passed by the District Judge, Seoni in Civil Regular Appeal No. 2-A/94, setting aside the judgment and decree dated 26. 3. 94 passed by the Civil Judge class-I Lakhnadon in Civil Original Suit No. 72--A/92 decreeing his suit for declaration against the respondents.

(2.) THE facts of the case in brief are that the appellant herein filed the suit against the respondents for declaration with respect of the agricultural land bearing Survey No. 115/2, 117/2, 121/3-kh and 121/4-kh total area 16. 83 acre, situated at village Pahadi, Tehsil Lakhnadon. As per averments of the plaint, the aforesaid land along with some other land total 41. 80 acres was purchased jointly by the appellant and Mst. Ramko w/o Dharmu (maternal grand mother of respondent No. 1 and 2), from its earlier owner, through registered sale deed dated 12. 12. 1956 (Ex. P/1) in their equal share but the name of respondent No. 3 and 4, the sons of respondent No. 1 were also inserted as purchasers in the sale deed with the name of Ramko Bai. Subsequent to such acquisition, in oral partition, the aforesaid land was given to the appellant, while the remaining 24. 97 acres land was given to mst Ramko Bai along with respondent No. 3 and 4. Thereafter, in accordance with the aforesaid oral partition, the land given to Mst Ramko bai and respondent No. 3 and 4 bearing Survey No. 115/1, 117/1, 118, 121/3-A, 121/4-b area 24. 97 acre was recorded only in the name of respondent No. 3 and 4 and due to over sight and mistake, the name of Mst. Ramko Bai was remain continued with the appellant on the land given to him. Inspite such mutation, the appellant is coming in possession of the disputed land under his title. Said Ramko Bai died in the year 1979. Thereafter, the respondent No. 1, on the strength of a Will, as alleged, executed by Mst Ramko Bai, filed an application for mutating her name with the appellant in the revenue record. The same was opposed by the appellant. In pendency of such mutation proceedings, the respondent No. 1 waived her right claimed on the strength of aforesaid Will and entered into a compromise with the appellant by taking 1. 214 hectares ( 3 acres) of land for lifetime maintenance of herself. Such compromise was also filed in the court of Tehsildar but, however, without considering the same, the name of respondent No. 1 and 2, was substituted in the revenue records with the name of the appellant and due to such mutation, the exclusive right and title of the appellant over such land became suspicious, on which, the appellant has filed the impugned suit declaring him to be the exclusive Bhumi Swami of the disputed land.

(3.) IN the written statement of the respondents, it is stated that such land was purchased by deceased Mst Ramko Bai for respondent No. 3 and 4. The entire consideration was paid by her. In such premises, the appellant did not have any right with respect of the disputed land. The name of the appellant was inserted in the sale deed as purchaser only with intention for taking his assistance to lookafter the proceedings of the court and the offices. No partition took place between the parties in the year 1960. The respondent No. 3 and 4, being minor in the year 1960 were not having any right to initiate any proceedings for partition. The appellant has also not acquired the title of such land by adverse possession. Mst Ramko Bai, by executing a Will bequeathed her property to respondent No. 1, her daughter, but such Will was not traceable on account of theft, hence the proceedings of mutation was also not properly conducted by them. The compromise in the Community Panchayat was carried out under the pressure and no land was given to her for her lifetime maintenance while the same was inherited by respondent No. 1 and 2 from their mother Mst Ramko Bai.