Babulal and Another vs Jagannath and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment dated 19/05/11 passed by V ADJ, Indore in Civil Appeal No. 46/10, whereby judgment dated 05/08/10 passed by Civil Judge, Class-I, Sawer Distt. Indore in Civil Suit No. 60-A/08, whereby suit filed by the appellants for declaration, permanent injunction and mesne profit was dismissed, was maintained, present appeal has been filed.

Short facts of the case are that the appellants filed a suit alleging that Jagannath respondent No. 1 is father of appellants and Ramchandra is the brother of respondent No. 1. It was alleged that the suit property came into the share of respondent No. 1 in partition with his brother Ramchandra. It was alleged that Nandkishore was also the son of respondent No. 1. It was alleged that the land bearing survey No. 2 measuring 363 hectare is the ancestral property of appellants and deceased Nandkishore. It was alleged that the appellants and Nandkishore were in job, therefore, the agricultural land was being looked after by respondent Nos. 1 & 2. It was alleged that the house is situated at survey No. 287 measuring 0.202 hectare. It was alleged that one Prakash S/o Jeevanlal executed the sale deed of this land in favour of respondent No. 1 before one year. It was alleged that because of submergence of the ancestral house of the appellants, State Government provided a land to the appellants and deceased Nandkishore, over which the house was constructed at village Badi Churlai, but the respondent No. 2 is trying to take possession forcibly. It was alleged that the respondent No. 1 is trying to get the name of legal representatives of Nandkishore who are respondent Nos. 3 to 7 mutated in the revenue record, for which objection was filed by the appellant. It was alleged that inspite of having rights in the suit property by birth respondent No. 2 has illegally got the name mutated in favour of his sons and also in favour of respondent No. 1. It was alleged that the respondent No. 1 is an old man and by playing fraud name of respondent Nos. 6 & 7 have been got mutated and sale deed has also been executed by respondent No. 1 in favour of respondent Nos. 6 & 7. It was alleged that the sale deed is not binding on the appellants. The suit was contested by respondent Nos.1, 2, 6 & 7, wherein allegations were made in the plaint were denied. After framing of issues and recoding of evidence learned trial Court dismissed the suit filed by appellants, against which an appeal was filed, which was also dismissed, hence this appeal.

Learned counsel for the appellants argued at length and submit that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that the respondent Nos. 2 to 7 did not appear in witness box to prove that they have purchased the suit land after payment of consideration to respondent No. 1, but inspite of that the learned Courts below committed error in dismissing the suit filed by appellants. It is submitted that the respondent No. 1 was having no authority to sell the ancestral property without determining the shares of the appellants and without their consent. It is submitted that such sale is null and void. It is submitted that in the facts and circumstances of the case, appeal filed by the appellants be allowed and the impugned judgment passed by the learned Courts below be set aside.

From perusal of the record it is evident that the findings recorded by the learned Courts below are based on due appreciation of evidence and are concurrent finding of facts, which requires no interference. In view of this, appeal filed by the appellants has no merits and the same stands dismissed.