BALAK RAM Vs. MANSHA RAM

JUDGEMENT

(1.) THE appellant/defendant No. 2, being aggrieved by the judgment and decree dated 06. 03. 2007 passed in Civil Appeal No. 74-A/06 passed by III Addl. District judge (Fast Track Court), District Seoni, whereby the judgment and decree dated 19. 12. 2005 passed in Civil Suit No. 59-A/05 by the Civil Judge, Class II, Seoni decreeing the entire suit of the respondent No. 5 of partition, has been modified by excluding the land bearing Survey No. 148/2 area 3. 00 hectare recorded in the name of respondent No. 2 as Bhoomi Swami from the suit property, has filed this appeal.

(2.) THE facts giving rise to this appeal in short are that plaintiff/respondent no. 5 filed the suit for declaration, partition and separate possession against respondents No. 1 to 4 and 6 to 7 with respect of the ancestral agricultural land bearing Survey Nos. 36,80,150,151,153 and 148/2 total area 6. 16 hectare, situated at village Sukri, Tehsil Seoni. As per averments of the plaint, plaintiff/respondent no. 5 is the son of respondent No. 1 (defendant No. 1) Mansha Ram from his second wife Chhoti Bai respondent No. 6 (defendant No. 3), while the appellant/defendant no. 2 Balak Ram is the son of respondent No. 1 from his first wife Mohendra Bai (since divorced) and Ku. Banwati Bai and Ku. Rajkumari Bai therespondent No. 3 and 4 (defendant No. 5 and6) are daughters of respondent No. 1 from his mistress naniya Bai the respondent No. 2 (defendant No. 4 ). As per further averments of the plaint, the aforesaid Survey No. 148/2, area 3. 00 hectare was purchased out of the income earned from the aforesaid remaining ancestral land and, in such premises, such land also belongs to Hindu undivided family. It was also stated that after three months from the birth of plaintiff/respondent No. 5, respondent No. 1 ousted his mother Smt Chhoti Bai, respondent No. 6/defendant No. 3, in whose lap plaintiff/respondent No. 5 was surviving. After two years from such incident, respondent No. 1 brought and kept Nanhiya Bai, respondent No. 2/defendant No. 4, with him as his mistress without solemnizing the marriage with her. As alleged, she was already married with a person of her community of village Sillor who is still alive from whom she has not taken any divorce. As per further averments, the disputed property being ancestral, the plaintiff/respondent No. 5, his step brother appellant/defendant No. 2 and his father respondent No. 1, are having equal title and right in such property as co-parcenor of the family but with intention to deprive plaintiff/respondent No. 5 from his share in the aforesaid property, under some conspiracy with the revenue officers, the part of ancestral land bearing s. No. 148/2 area 3. 00 hectare, was got mutated either in the name of respondent no. 2/defendant No. 4 or in the name of respondent No. 3 and 4/defendant No. 5 and 6, as mentioned in para-7 of the plaint. As such, these respondents had never acquired any right or title in such property. Mere, on some mutation in the revenue record, the right of the plaintiff/respondent No. 5, is not washed away. Even after attaining maturity, he was not given his share of the profit from the property. In such premises, the aforesaid suit for his 1/3rd share of the property was filed by the plaintiff/respondent No. 5.

(3.) IN the written statement of respondents No. 1 to 4 (defendant No. 1,4,5 and 6), the averments with respect of the family description was admitted but the other averments of the plaint are denied. As per further averment they are residing separately since long and the disputed land exclusively belongs to respondent no. 1. The mother of plaintiff/respondent No. 5 left respondent No. 1 long back and since then she is residing with her parents family. Inspite making efforts she did not return and also initiated the proceedings for maintenance. In such circumstance, the respondent No. 1 got married with respondent No. 2/defendant no. 4 in accordance with the custom of the community and since then respondent no. 1to 4 (defendant No. 1 and 4 to 6) are residing together in the family. Respondent No. 6/defendant No. 3 the mother of the plaintiff/respondent No. 5 is being paid the maintenance by respondent No. 1. The land bearing Survey no. 148/2 area 3. 00 hectare is exclusive property of Nanhiya Bai, respondent No. 2/ defendant No. 4, and she being in possession is enjoying the same. The plaintiff/respondent No. 5 in the conspiracy with the appellant/defendant No. 2 and respondent No. 6/defendant No. 3, by fabricating false document with respect of the partition, has filed the suit on false averments. He also stated that some revenue proceedings with respect of partition was held in the court of Tehsildar. Such proceedings is shown to be pending in appeal before the Sub Divisional Officer. In such premises, the prayer for dismissal of the suit is made.