LAL SHANKAR Vs. KACHRU

JUDGEMENT

(1.) Heard learned counsel for the appellant at the stage of admission of this appeal This second appeal under Sec. 100 of the Civil Procedure Code has been filed by the appellant-defendant No. 1 Lal Shanker against the order dt. 30.5.2012 passed by the learned Additional District Judge (Fast Track), Dungarpur, Rajasthan (hereinafter referred to as 'the appellate Court') in Civil First Appeal No. 7/2009 (2/2005), whereby the appellate Court remanded the suit back to the Court of Civil Judge (S.D.), Sagwara, District, Dungarpur (hereinafter referred to as 'the trial Court') for decision afresh and set aside the order of the trial Court passed in Civil Suit No. 53/96 on 28.01.2005, whereby the suit filed by the plaintiff-respondent No. 1 Kachru for declaration and permanent injunction was ordered to be returned to the plaintiff to file the same before the revenue Court having jurisdiction.

(2.) Brief facts giving rise to this second appeal are that the plaintiff-respondent No. 1 Kachru filed a suit for declaration and permanent injunction on 06.07.1996 alleging, inter alia, therein that his agricultural land bearing Khata No. 261, Khasra No. 1900 situated at Pipalwala Rakba 6 Biswa, Kismu Sukhi-1, Mauja Gada, Jasrajpur is the ancestral property of the plaintiff, which is registered in the name of Laxi-respondent No. 2. The plaintiff is the son of Laxi and, therefore, he is joint Khatedar in the said property being its shareholder. It was also stated in the paint that the said property had been equally divided by the respondent No. 2 between plaintiff and his brother Jeevan. Appellant Lal Shanker had unauthorizedly got the said property registered by cheating Laxi in the name of exchange of land and no amount of money was paid by him to respondent No. 2-Laxi. It was also stated in the plaint by the respondent No. 1 Kachru-plaintiff that the sale deed dt. 25.02.1995 was got executed by way of cheating and the papers of registry do not have the signatures of any villager as witness and respondent No. 2 Laxi did not have any personal necessity to sell the same. As such, the plaintiff sought a declaration to the effect that the sale deed dt. 25.02.1995 is void and ineffective qua the plaintiff and on the basis of same, the revenue department may not carry out mutation proceedings in favour of the present appellant as being Khatedar.

(3.) Appellant-Lai Shanker has filed written statement before the trial Court on 30.8.1996 alleging therein that the plaintiff was not the khatedar of the land in dispute and the land was not a paternal land and the plaintiff had no share in the disputed land. It was also alleged that no partition had taken place between plaintiff and his brother Jeevan and Laxi on 12.5.1980. The partition deed was not a registered document and therefore, it did not create any title in favour of the plaintiff. More so, the said alleged partition was reduced in writing subsequently and Laxi had duly and lawfully executed the sale deed dt. 25.2.1995 in favour of the appellant in consideration of Rs. 6000/-, which she had received. The said sale deed dt. 25.02.1995 also contains the signature of Jeevan as witness, as such the said execution of sale deed is not a forged document and the plaintiff has utterly failed to prove as to how the appellant played a fraud with the plaintiff and Laxi.