MUSADI Vs. GANPATU

JUDGEMENT

(1.) This second appeal by one set of defendants and Regular Second Appeal No. 16 of 61 by the plaintiffs arise out of the same judgment and decree of the learned District Judge Mahasu and in order to facilitate matters, I propose to dispose of both by this judgment.

(2.) The facts of the case are that Bihari and Mast Ram were own brothers and each one of them had a moiety share in 38 bighas 11 biswas of land appurtenant to Khewat No. 1, Khatauni No. 27 and in 418 bighas 15 biswas of land appurtenant to Khewat No. 1 Khatauni No. 95 situate in village NaUni Pargana Pargohat Tehsil Arki district Mahasu. They were occupancy tenants and Raja Rajendra Singh, the erstwhile Raja of Arki, who figured as defendant No. 1 to the suit, was the landlord of the aforesaid land. Smt. Ganpatu, the plaintitff to the suit, was the wife of Bihari and Smt. Jamna was the wife of Mast Ram. Bihari died in Baisakh 2.000 B. corresponding to 1944 A.D. and the name of Smt. Ganpatu was brought on record as against the one half-share of Bihari vide extract from mutation Ex. P.3. Tif 2004 B. Mast Ram died and mutation as against bis one-half share was effected in favour of Smt. Jamna. The aforesaid lady remarried after the death of Mast Ram. On 2-5-1954 the Patwari of the mauza submitted a report that Smt. Jamna had remarried about 4 or 5 years ago and her name be expunged from column No. 5. The mutation was attested and sanctioned on 16-5-1955 and the name of Smt. Jamna wa-s expunged and that of Raja Rajendra Singh mutated as against the one-half share of Mast Ram vide Ex. P. 9. The aforesaid Raja Rajendra Singh executed a patta in respect of the disputed land in favour of Smt. Nazku, Mussadi and Dhania in lieu of a sum of Rs. 3,000/- and on the report of the Patwari dated 29-4-1955 mutation was attested and sanctioned on 13-10-1955 vide Ex. P. 8. On 13-5-1955 the Patwari reported that Smt. Ganpatu, the plaintiff of the suit, had remarried and on 16-5-1955 mutation was attested and sanctioned and the name of Smt. Ganpatu was expunged and the name of Raja Rajendra Singh was mutated as against the one-half share of Bihari vide Ex. P.7. On 20-4-1956 Smt. Ganpatu filed a suit against vShri Raja Rajendra Singh defendant No. 1 and Smt. Nazku, Shri Mussadi and Shri Dhania, defendants Nos. 2 to 4, for a declaration that she was the occupancy tenant of the aforesaid land appurtenant to Khewat No. 1 Khatauni No. 27 and was not bound by the mutation orders by which he,r name and that of Smt. Jamna were expunged and the names of defendants were entered and for a perpetual injunction that the defendants Nos. 2 to 4 be restrained from interfering with her possession over the aforesaid land. The main allegations on which the aforesaid suit was founded were that Smt. Jamna remarried after the death of Mast Ram, that the plaintiff was the occupancy tenant of the land described in the plaint, that her name was expunged from the revenue papers behind her back without issuing a notice to her and that she was in possession of the disputed land. At the instance of the plaintiff a temporary injunction was issued to the defendants restraining them from interfering with the possession of the plaintiff over the disputed property.

(3.) The suit was resisted on behalf of the defendants. The main pleas urged were that the suit was not cognizable by a civil Court, that no suit could be filed against defendant No. 1 without the sanction of the Central Government, that in accordance with the prevailing custom the plaintiff remarried one Jai Ram after the death of her husband and as such she forfeited the right to inherit her husband's property that defendants Nos. 2 to 4 had been in possession of a one-third share in the lands of Mast Ram for about 14 years when the same was mortgaged with them and that the plaintiff was not entitled to any relief.