SURESH CHANDRA NANHORIA Vs. RAJENDRA PRASAD RAJAK

JUDGEMENT

(1.) This miscellaneous appeal has been preferred by the appellant/defendant No.2 under Order 43 Rule 1(u) of CPC against the remand order dated 15.2.2010 passed by the 17th Additional Sessions Judge, Jabalpur in Civil Suit No.41-A/2008 wherein, in the regular civil appeal preferred by the plaintiff arising out of an order dated 26.11.2002 passed in Civil Suit No.99-A/2001 by the 15th Civil Judge Class-II, Jabalpur has been allowed. Vide the order dated 26.11.2002 the application filed by the appellant/defendant No.2 under Order 7 Rule 11 of CPC for rejection of suit has been allowed and the suit has been rejected.

(2.) In brief the facts of the case are that the appellant, an Army Officer is a resident of Jabalpur having served with the Border Security Force (BSF), purchased a plot No.25 in series 'A', Narmada Nagar, admeasuring 40 x 60 sq. ft. at Khasra No.24/1, 12 and 123 of Village Polipather within the Jabalpur Municipal Corporation limits through a registered sale deed dated 20/22.10.1971 from Narmada Nagar Colonizers, a registered partnership firm at Jabalpur, which comprised of five partners, viz., Rameshwar Prasad Dubey, Ranjeet Singh, Arun Kumar Paranjpe, Ashok Kumar Malhotra and Trilokinath Kakkar and he was also put into possession of the said plot.

(3.) The case of the appellant is that one of the partners of the said partnership firm viz. Rameshwar Prasad Dubey, without any right, title or interest, executed a registered sale deed dated 4.4.1986 in respect of the appellant's plot in favour of the respondent No.1 Rajendra Prasad Rajak. Thus, it is alleged that a fraud was played against the appellant by the said Rameshwar Prasad Dubey by executing the registered sale deed of the plot which belonged to the present appellant. It is further the case of the appellant that since he was serving in the Border Security Force, in the line of his duty, he was required to remain present on the border and also took part in Indo-Pak wars during the years 1965 and 1971, but, taking advantage of the appellant's absence, the plot in question was sold by said partner Rameshwar Prasad Dubey to the respondent No.1- Rajendra Prasad Rajak through the registered sale deed dated 4.4.1986, who took possession of the said plot and some construction was also carried out by him. In the year 1997, the appellant came to know about the execution of the aforesaid sale deed dated 4.4.1986 in favour of the respondent No.1. He also came to know that a brick room was constructed having electricity connection, hence he immediately submitted an application before the Collector, Jabalpur to get the plot vacated from the respondent No.1 and also applied for mutation of his name in the nazul record on the basis of registered sale deed dated 20/22.10.1971. Consequently, the plot was mutated in the appellant's name on 10.8.1999 and on the appellant's application to dispossess the respondent No.1 from the plot in question, the Collector also passed an order against the respondent No.1 directing him to vacate the premises within 15 days time. The Collector also directed that an FIR be registered against Rameshwar Prasad Dubey, who had played fraud against the appellant and in favour of the respondent No.1.