VIDYABAI Vs. LAXMI RAJORIYA

JUDGEMENT

(1.) This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 30/11/2017 passed by 14 th Additional District Judge, Gwalior in First Appeal No.13-A/2014, thereby affirming the judgment and decree dated 15/7/2014 passed by Third Civil Judge, Class-II, Gwalior in Civil Suit No.23-A/2013, by which the suit filed by the respondents no.1 to 6/plaintiffs was decreed and the counterclaim filed by the appellants/defendants was dismissed.

(2.) The necessary facts for disposal of the present appeal in short are that a suit was filed by respondents no.1 to 6 for declaration of title and permanent injunction pleading inter alia that Late Halkeram was the owner of the property in dispute, who died on 14/6/2009 and the plaintiff no.5-Smt. Shyamabai is the widow of Late Halkeram, plaintiff no.6-Smt. Geeta is the daughter, plaintiff no.1-Smt. Laxmi Rajoriya is the daughter-in-law of Late Halkeram, whereas plaintiffs no.2, 3 and 4, namely, Dharmendra Rajoriya, Rajendra Rajoriya and Kailash Rajoriya are the grandsons of Late Halkeram. It was the case of the plaintiffs that Halkeram had one sister, namely, Sagunabai, who was married to Sarman and Narayan had born out of the wedlock of Sagunabai and Sarman. It was further pleaded that the appellants/defendants no.1 to 4 are the wife and children of one Rana. Halkeram during his lifetime had also executed a Will on 28/11/2007 in favour of plaintiffs no.1 to 4. It was further pleaded that Halkeram was neither married to Divlobai nor Narayan is his son. In fact, Narayan is the nephew of Halkeram, who was residing with Halkeram and was sharing his burden in agricultural activities. Sarman was the resident of Bavan Paiga, Nai Sadak, Gwalior and at this place only Narayan had expired. It was further pleaded that the defendant no.1/appellant no.1 was married to Narayan, but thereafter she left Narayan and married another person, namely, Rana and defendants no.2 to 4 were born out of the wedlock of Rana and defendant no.1. It was further pleaded that in connivance with the Patwari, defendants no.1 to 4/appellants have fraudulently got their names recorded over 1/4th part of the property in dispute. Forged ration card and other documents have also been prepared by defendants no.1 to 4/appellants and thereafter, defendants no.1 to 4/appellants have executed a sale deed in respect of a part of the property in dispute to defendant no.7. The plaintiffs/respondents no.1 to 6 had filed an appeal against the order of mutation, which has been accepted and the order of mutation has been set aside. The defendant no.7 is a property dealer and he has purchased the property after the death of Halkeram in a clandestine and fraudulent manner. As a result of execution of sale deed, the rights of the plaintiffs have come under a cloud, therefore, the suit was filed for declaration of title, declaration that the sale deed dated 13/8/2009 is null and void as well as for permanent injunction.

(3.) The defendants no.1 to 4/appellants and defendant no.7 (appellant in Second Appeal No.14/2018) filed their separate written statement and pleaded that the plaintiffs have disclosed wrong pedigree of Late Halkeram. It was pleaded that Halkeram was married to one Divlobai and Narayan had born out of the wedlock of Narayan and Divlobai and during his lifetime he was residing alongwith his father Halkeram. Narayan is the husband of defendant no.1 and father of defendants no.2 to 4. After the death of Divlobai, Halkeram had kept the plaintiff no.5-Smt. Shyamabai as his keep, however, marriage was not performed. Out of the illicit relations of Halkeram and Shyamabai, Jagdish and plaintiff no.6-Smt. Geeta were born, but they are the illegitimate children of Halkeram. It was denied that Smt. Vidyabai had married Rana, but it was claimed that the plaintiffs have wrongly called Narayan as Rana. It was pleaded that the defendants no.1 to 4 are the legal representatives of Halkeram and only because of that, their names were mutated in the revenue records. The plaintiffs have filed the suit on incorrect grounds. Since the defendant no.1 is an illiterate and household lady and she is the wife of deceased Narayan, therefore, the Sarpanch of the village had prepared a Panchnama after the death of Halkeram, which was given to the Patwari and on the basis of said Panchnama, the names of defendants no.1 to 4 were mutated in the revenue records. It was further pleaded that the defendants no.1 to 4 have validly executed a sale deed in favour of defendant no.7 and the suit has not been properly valued and insufficient court fee has been paid.