SURESH JATAV Vs. SALIM

JUDGEMENT

(1.) The appellant has preferred this misc. appeal under Order 43 Rule 1(U) of the Code of Civil Procedure, assailing the judgment and decree dated 31.10.2018 passed by Thirteenth Additional District Judge, Gwalior in Civil Appeal No. 61A/2016, whereby the judgment and decree dated 18.7.2016 passed in Civil Suit No. 217A/2013 has been set aside and allowing the application filed by the respondents/defendants under Order 41 Rule 27 CPC the matter has been remanded back to the trial Court with a direction to take the documents on record and to decide the civil suit afresh.

(2.) Brief facts of the case are that appellant/plaintiff had filed suit for declaration and permanent injunction against the respondent No.1 and Guldhari with regard to the suit house No. 153, situated behind Leather Factory Morar. It was pleaded in the plaint that the suit house is ancestral and HUF property of appellant/plaintiff and Guldhari. It was pleaded that Gopal Jatav, father of appellant and Guldhari were members of Gwalior Leather Factory Grah Nirman Samiti. They had obtained a plot admeasuring 50x30 sq. ft. and the Samiti had constructed a house over the said plot, for which consideration was paid by appellant's father Gopal and grandfather Guldhari, thereafter Gopal expired. It is also pleaded in the plaint that the appellant is residing in the suit house along with his mother and there is a water connection in the name of his mother. The appellant/plaintiff wanted to construct new boundary wall instead of old boundary wall, but defendant No.1 objected it by saying that he had purchased the suit house from Guldhari. Therefore, the appellant/plaintiff filed a suit for declaration and permanent injunction that the Guldhari had no right to sell the suit house which is an HUF property. Along with the plaint, the plaintiff had also filed an application under Order 39 Rule 1 and 2 CPC.

(3.) The defendant No.1 filed reply to the application under Order 39 Rule 1 and 2 CPC and pleaded that Guldhari had sold out the suit property to his wife Smt. Parveen Begum. Therefore, the appellant/plaintiff arrayed Smt. Parveen Begum as party defendant No.3 and amended the plaint with the pleading that the defendant No.2-Guldhari got treatment during his illness from defendant No.1 and defendant No.1 by taking undue advantage and by giving toxic medicine to defendant No.2, obtained signatures on some deed in a fraudulent manner, hence such transfer is void ab initio.