BADRI PRASAD Vs. BHAGWANT

JUDGEMENT

(1.) This appeal is directed under section 100 of the CPC by the appellant/ plaintiff being aggrieved by the judgment and decree dated 12.1.09 passed by II Addl. District Judge (Fast Track) Mauganj in Civil Regular Appeal No. 1-A/09 affirming the judgment and decree dated 25.3.08 passed by Civil Judge Class-I, Mauganj in Civil Original Suit No. 142-A/99, dismissing the suit of the appellant filed for declaration of his title over 1/2 share of the suit land with possession by declaring him to be the son of Shiv Prasad with a further direction to correct the revenue record accordingly.

(2.) The facts giving rise to this appeal in short are that the appellant herein filed the suit against the respondents contending that the disputed property described in the plaint being ancestral property of the appellant and the respondent No. 1 was earlier recorded in the name of Beni Madhav Kurmi. In such suit land the grandfather of the appellant,namely, Baba Sukhdev Kurmi, had 1/2 share while the remaining 1/2 share was of Budhi Kurmi. Said Baba Sukhdev Kurmi died long before 72 years and after his death his land was inherited by his sons, namely, Shiv Prasad and Muni Prasad, who also died long before 70 years and 55 years respectively. Muni Prasad was survived by his two sons, namely, Kedar and Bhagwant. After death of Kedar, his wife, namely Chandrawati started residing with Bhagwant. There was a Joint Hindu Family of Shiv Prasad the father of the appellant and Muni Prasad. The appellant was of the age of 5 years when his father Shiv Prasad died. Thereafter, as per custom of the community, his mother started residing with Muni Prasad as his wife. Said Muni Prasad, being cunning person, by taking his mother in confidence, started to show his name as father of the appellant instead of the name of Shiv Prasad. The alleged Joint Hindu Family is still in existence. In the month of March, 1999, some dispute took place between the members of the family, on which, the appellant asked respondent No. 1 Bhagwant for partition of the ancestral land. On such occasion, Bhagwant told him that in the revenue records the name of Muni Prasad has been mentioned as his father therefore, he may get only 1/4 share, on which, appellant obtained the certified copies of the record of rights in which he found the name of Muni Prasad as his father and not Shiv Prasad. With these averments, the appellant filed the impugned suit declaring him to be the son of Shiv Prasad and in such premises the Bhumiswami and possession holder of 1/2 share of the suit land with a further declaration to mention the name of Shiv Prasad as his father in the revenue record by replacing the name of Muni Prasad.

(3.) In the written statement of the respondents No. 1 to 6 it is stated that in fact the appellant is the son of Muni Prasad and is entitled to get the share in the property accordingly and there is no dispute in this regard but by making false story, the appellant has filed the impugned suit. As per further averments, said Shiv Prasad died issue-less in the lifetime of the predecessor-in-title Shri Beni Madhav. Muni Prasad also died before 45 years. After death of Muni Prasad, as his legal heirs, the appellants, respondent No. 1 and the other brother Kedar, had inherited the aforesaid land. Subsequently, Kedar also died before 33 years. Thereafter, as per custom of community, his wife started residing with respondent No. 1 Bhagwant as his wife. Shiv Prasad was married with Subarnua but soon after the marriage, before happening their 'Guna' ceremony, Shiv Prasad died hence they could not consume the marital relationship. Thereafter, as per custom of the community Subarnua started residing with Muni Prasad as his wife and due to such physical relationship, appellant Badri Prasad was born while the respondent No. 1 Bhagwant and said Kedar, were born from Titli, the first wife of Muni Prasad. In such premises, the appellant was known as the son of Muni Prasad and such paternity was always used by the appellant upon filing the present suit. At the time of registration of some document regarding transfer and partition of the property with his sons, he shown himself to be the son of Muni Prasad but now unnecessarily only to create the dispute in the family he is showing himself to be the son of Shiv Prasad. Before 40 years, after the death of Muni Prasad, some oral partition took place between the parties in which 1/2 of the ancestral land was taken by Budhi Kurmi while remaining 1/2 of the land was divided between all the three brothers, the appellant, respondent No. 1 and deceased Kedar in equal l/3rd share. Since then the appellant by taking his 1/3rd share is residing separately and also in possession of the same. After the death of Kedar, his wife and sons are in possession of his share. In the month of March, 1999, no discussion with respect of the partition of the land took place between the appellant and respondent No. 1. In addition, it is stated that the appellant himself has made the arrangements of the land of his share by carrying out the partition in favour of his sons Bhagwant and Ram Garib stating himself to be the son of Muni Prasad. In pursuance of such registered partition dated 25.2.1970, the names of his sons are also mutated in the revenue record. In such permises, the appellant did not have any cause of action for the impugned suit. The suit is filed on false averments. In such premises prayer for dismissal of the suit is made.