INDERBAI Vs. DHANNA

JUDGEMENT

(1.) This miscellaneous appeal by plaintiffs under Order 43 rule 1(u) CPC is directed against the order dated 10/09/2018 passed in appeal No.28A/2013 by the Additional District Judge, Khachhrod, District Ujjain. The appellate Court exercising the power under Order 41 rule 23A CPC has remanded civil suit No.5A/2012 for retrial by setting aside the judgment and decree dated 30/07/2013 passed by the trial Court.

(2.) Facts relevant and necessary for disposal of this appeal lie in narrow compass: The appellants/plaintiffs have field the suit for declaration and injunction in respect of the suit land falling in survey Nos.447, 447/1, 447/2, 448/2 and 448/3 situated in village Khandwa, tehsil Kachhrod inter alia contending that the suit land falling in parts of the aforesaid survey numbers described in paragraph 3 of the judgment of the trial Court have been purchased from the heirs of late Heera by way of registered sale deed dated 24/06/2010 and obtained possession. The suit land had fallen to the share of Heera (since dead) through testamentary succession by virtue of 'will' dated 15/10/1992 executed by his father late Deva son of Seva. The name of Heera was mutated in the revenue record in case No.6-A-6/98- 99. After death of Heera, the suit land was mutated in the names of his heirs who have sold the suit land in favour of the plaintiffs. However, Dhanna another son of late Deva made a false complaint before the Collector, Ujjain on 07/07/2010 against mutation in the name of Heera by virtue of the aforesaid 'will' over the suit land seeking change of mutation. The defendant No.1 threatened the plaintiffs for forcible dispossession from the suit land, therefore, a complaint in that behalf was made. Since, no action was taken thereupon, the instant suit has been filed.

(3.) Defendant No.1 filed written statement and denied plaint allegations inter alia contending that after death of Deva, the suit property is joint family property and always remained in the name of late Deva; father of Dhanna and Heera. During his life time, Deva had divided the entire property amongst his sons, details whereof are described in paragraph 4 of the judgment of the trial Court. It is denied that late Deva had executed 'will' in favour of Heera. As regards the mutation, it was contended that the order passed by Tehsildar in case No.6-A-6/98-99 on 21/12/1998, an appeal bearing No.14/98-99 was preferred before the Sub Divisional Officer and the same was allowed on 29/08/2001 setting aside the order passed by the Tehsildar with a direction to rehear the case on merits. However, no further details of the proceedings or consequences flowing therefrom are placed on record.