BASABTI BAI Vs. SHEELA BAI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 14.03.2019 passed by Civil Judge, Class-I, Kurwai District Vidisha in Civil Suit No. 29-A/2018, by which the application filed by the petitioner under Order 18 Rule 3 of CPC has been rejected.

(2.) The necessary facts for disposal of the present petition in short are that the petitioner has filed a suit for declaration of title as well as for permanent injunction pleading inter alia that the original owner Pranchand had three daughters namely Laxmi Bai, Basanti Bai and Savitri Bai. He died without leaving any "Will". One of the daughter of Pranchand namely Laxmi Bai got her name mutated in the Nagar Panchayat record on the basis of some illegal "Will" purportedly executed by Pranchand. It was pleaded that the defendants No. 2 to 6 are claiming that Laxmi Bai had executed a "Will" in their favour. However, the "Will" is illegal and without any authority because Laxmi Bai is not the sole owner and in possession of the property in dispute mentioned in Schedule - A. It was further pleaded that on the basis of another "Will" executed by Laxmi Bai, defendant No. 1 is also claiming herself to be a solitary owner of the house shown in the Schedule - B but in fact Laxmi Bai had no right to execute the "Will". It was further pleaded that the plaintiff/petitioner is not interested in partition but she wants to keep the property as joint property. Thus, it was pleaded that property shown in Schedule - A and B be declared as joint and undivided property. It be also declared that the petitioner / plaintiff has also 1/3rd share in the property mentioned in Schedule - A and B. It be also declared that defendants No. 1 and 2 be restrained from alienating the property in dispute or demolishing or raising any construction in the property in dispute and the "Will" purportedly executed by Laxmi Bai in favour of respondents No. 1 to 6 be declared as null and void.

(3.) The defendants No. 1 to 6 filed their written statement. It was pleaded that the property in question was partitioned by Pranchand amongst three daughters. Laxmi Bai has sold the house situated near Government Boy School to Sheela Bai. Sheela Bai had allowed the son of petitioner to reside in a part of said house on an assurance that he would leave the premises after constructing his house. As the son of the petitioner did not vacate the house, therefore, Laxmi Bai had filed a suit for eviction and a decree of eviction has been passed against the son of the plaintiff, therefore, the present suit has been filed. Appeal against the decree passed against son of the plaintiff is already pending before the High Court. The allegation of execution of illegal "Will" in favour of Laxmi Bai was specifically admitted by him.