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Judgment
Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment dated 05/05/11 passed by IV ADJ, Ratlam in Civil Appeal No. 18-A/10, whereby judgment dated 03/05/10 passed by II Civil Judge, Class-I, Ratlam in Civil Suit No. 70-A/10 whereby suit filed by the appellants for declaration and permanent injunction was dismissed, was maintained, present appeal has been filed.
The appeal was admitted for final hearing on the following substantial questions of law:
(i) Whether in the facts and circumstances of the case, learned Courts below committed error in dismissing the suit filed by the appellants?
(ii) Whether the learned Courts below committed error in holding deceased/Naguji had a right to transfer his share without partition and without consideration?
Short facts of the case are that the appellants filed a suit for declaration and permanent injunction before the learned trial Court alleging that the appellants and respondent Nos. 1 to 3 are the close relatives. Vishram was the father of appellant No. 1, who left the land bearing survey No. 278/1 measuring 2.340 hectare, survey No. 392 measuring 0.420 hectare, survey No. 623/3 measuring 0.150 hectare and survey No. 744 measuring 0.3 hectare. It was alleged that the appellants and respondent No. 4 are the legal heirs of Vishram. It was alleged that respondent No. 4 is habitual drinker and he has not taken care of his family. It was alleged that because of his bad habits for the purpose of liquor respondent No. 4 sold the suit property, but the physical possession remained with the appellants. It was alleged that the land which was sold by the respondent NO. 1 vide sale deed dated 06/08/86 is for the land bearing survey No. 278/1 measuring 0.600 hectare, for which the sale deed was executed in favour of respondent No. 1. It was alleged that for this sale deed no consent was taken from the appellants and no consideration was received by the respondent No. 4. It was alleged that the sale deed is illegal and void. It was alleged that the decree of declaration and permanent injunction be passed in favour of appellants. The suit was contested by the respondent Nos.1 & 2. It was alleged that Vishram left no ancestral land. It was alleged that the land was sold by Dhulaji S/o Nandaji vide sale deed dated 08/04/70 in favour of appellant No. 1 and respondent No. 4, of which survey numbers are 278, 392 & 744 measuring 15 Bigha 6 Biswa. It was alleged that neither the suit property is ancestral, nor the family property. It was denied that respondent No. 1 is a habitual drinker. It was also denied that in collusion the sale deed was got executed. It was prayed that the suit be dismissed. After framing of issues and recording of evidence learned trial Court dismissed the suit, 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 deserve to be set aside. It is submitted that from the evidence is is evident that the suit property is the property of joint ownership and no partition took place between the parties, therefore, Nagu respondent No. 4 was having no authority to sell any part of the suit property. It is submitted that in the facts and circumstances of the case, learned Courts below ought to have decreed the suit filed by appellants. It is submitted that the 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 appellants are claiming rights in the suit property. Respondent No. 4 is also having some rights in the suit property. Since the allegation is that the respondent No. 4 has sold a part of the suit property, therefore, it was expected from the appellants to file a suit for partition and not for declaration and permanent injunction. In the opinion of this Court learned Courts below committed no error in dismissing the suit, which was simpliciter suit for declaration and permanent injunction. While the consequential relief is of partition, as the sale deed is valid to the extent of share of respondent No. 4.
In the facts and circumstances of the case learned Courts below committed no error in dismissing the suit filed by appellants. Similarly in the opinion of this Court the sale deed is valid to the extent of share of respondent No. 4. In view of this, appeal filed by the appellants has no merits and the same stands dismissed. However, appellants shall be at liberty to file a suit for partition and also for cancellation of sale deed to the extent of it was beyond the share of respondent No. 4. If such a suit is filed, then the learned Courts below shall decide the same in accordance with law.
No order as to costs.