JUDGMENT

Ram Prasanna Sharma, J. - This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 1-11-2017 passed by 3rd Additional District Judge, Surajpur, Dist. Surajput (CG) in Civil Suit No. 77-A/11 wherein the said court decreed the suit filed by the respondent No.1 for declaration of title, restoration of possession and permanent injunction over the suit land bearing survey No. 202/2, 202/5, 233/2 (New No. 115, 134/1 & 142) area measuring 0./610, 0.510 and 1,450 total area 2.570 hectares situated at village Gorakhnathopur, Patwari Halka No. 25, Tahsil Surajpur, District Surajpur (CG).

2. As per version of respondent No.1/plaintiff, the suit property was recorded in the name of his father namely Sudarshan Prasad and after his death he succeeded the said property. It was pleaded that said property was purchased by his father from one Smt. Joginder Kaur vide registered sale deed and his father was cultivating the said land with the help of labourers. It was further pleaded that appellant No.1 and his son were residing at Bishrampur. There was some dispute between appellant No.1 and his son, therefore, appellant No.1 came to village Gorakhnathpur and father of respondent No.1 namely Sudarshan Prasad permitted him to reside over the suit property till he makes some alternate arrangement. It is pleaded that in order to grab the property, appellant No.1 moved an application for mutation before the Naib Tahsildar for which reports were made to Police. Subsequently father of respondent No.1 filed a suit for injunction which was dismissed in default. Naib Tahsildar, Pilka after dismissal of the suit mutated the name of appellant No.1 in the records though he does not have any title.

3. As per version of appellant No.1, father of respondent No.1 and appellant No.1 hails from common ancestral and they are having joint family property in village Bheladi District Chhapra (Bihar). Both brothers had purchased properties at Bheladi jointly not only this they had also purchased certain other properties. The suit property is also purchased from the funds of joint family properties, therefore, all the properties are joint family properties and the appellant No.1 was in possession of premises and was cultivating the land also. Sale deed was made by both the brothers jointly after paying sale consideration. Taking advantage of the situation that at the time of execution of sale deed appellant No.1 was in Bihar, father of respondent No.1 got the sale deed executed in his individual name.

4. Learned counsel for the appellants would submit as under:

i) Suit filed by father of respondent No.1 was dismissed on 25-1-1995 for want of prosecution, therefore, Rule 9 of Order 9 of the CPC would operate against respondent No.1 and he is precluded from bringing a fresh suit in respect of same cause of action.

ii) Father of respondent No.1 and appellant No.1 constituted joint family and having properties in their joint names thus presumption of joint Hindu family and its nucleus arises.

Iii) Respondent No.1 was under obligation to prove that suit property was not purchased from the funds of joint family and it was purchased individually by Sudarshan Prasad, but that is not proved.

iv) The trial Court has ignored the document (Ex.D/1 and D/2, D/6, D/7, D/8, D/9 D/10, D/11, D/17, D/25 and D/26, therefore, finding of the trial court is liable to be reversed.

5. On the other hand, learned counsel for the respondent No.1 would submit that cause of action accrued on 30-3-2011 when the name of appellant No.1 was ordered to be recorded jointly with name of respondent No.1 on the basis of an application filed on 1- 5-2010, with the copy of the Ex.P/26 which is interlocutory order of civil court and representing the same to be a decree of civil suit is fraud on revenue court. He would further submit that the appellant No.1 filed the counter claim before the trial Court which was dismissed, but no appeal has bee