The burden of proof lies on the person asserting a fact until it is discharged, and no party can travel beyond its pleading.

JUDGMENT :

Heard.

1) This appeal under Section 96 of the C.P.C. has been preferred by the appellants/defendants No. 1 to 3 against the judgment and decree passed by the learned District Judge, Bemetara (C.G.) in Civil Suit No. 7-A/2013 dated 23.07.2016, whereby the civil suit filed by the plaintiff for declaration of title, permanent injunction, possession and damages was decreed.

2) The brief facts of the present case are that the plaintiff/respondent No.1 instituted a suit seeking the declaration of title, a declaration that the mutation entry No. 70 made in the year 1977 is void, for permanent injunction and damages for loss of crop for the year 1991-92 in respect of the lands and house described in Schedules 'A' and 'B'. The family tree of the parties is given below:-

The plaintiff pleaded that there was a partition between the three sons of Gopal and the disputed property fell in share of Tilak. After the death of Tilak, the entire property was inherited by Sukhmat Bai and Dukalhin Bai, who were wives of the late Tilak and after their death, the entire property was inherited by Aheli Bai, who was the daughter of Tilak and Dukalhin Bai. Aheli Bai got married to Khelawan and the plaintiff was born out of their wedlock. After some time, Aheli Bai became blind and Khelawan (her husband) left her, therefore, she joined her mother Dukalhin Bai. The suit property was being cultivated by Khelawan, but later on, Khelawan left Aheli Bai. Thereafter, Dukalhin Bai and Aheli Bai gave disputed property in Adhiya to Bachan and his son Bhagwati (defendant No.1). After the death of Dukalhin Bai in the year 1976-77 and the death of Aheli Bai in the year 1990, the plaintiff Nana Bai became sole owner of the suit property, but when she visited Patwari, she came to know that the name of defendant No. 1 has been mutated in the revenue records, therefore, she filed suit seeking relief(s) as stated above.

3) The defendants in the written statement have stated that after the death of Sukhmat Bai and Dukalhin Bai, Aheli Bai gifted the entire suit property and house to defendant No.1 vide gift deed dated 15.01.1977 and possession was also handed over. Defendant No.1 denied that the suit property was given to him on Adhiya. It was further stated that he looked after Dukalhin Bai and Aheli Bai during their lifetime and also performed their last rites. He denied the fact that Aheli Bai was a married lady. In addition, the defendants claimed right over the suit property on the basis of adverse possession.

4) The learned trial Court held that the plaintiff is the owner of the suit property described in Schedules 'A' and 'B' having a total area of 8.50 acres and the mutation entry No. 70 year 1977 is liable to be set aside as being illegal. The learned trial Court further granted a decree of the permanent injunction but declined to grant damages for the years 1991-92. The learned trial court also held that the defendants could not prove that by virtue of the gift deed dated 15.01.1977 the possession of the suit property was handed over to defendant No. 1 and defendant No.1 could not prove his right and ownership over the property on the basis of the law of prescription. The trial Court found the civil suit well within limitation. Eventually, the learned trial Court decreed the suit.

5) Learned counsel for defendants No. 1 to 3/appellants would submit that there is a non-joinder of parties as survey No. 740 new survey No. 321 and survey No. 526 new survey No. 766 were recorded in the name of Chandrika S/o Chandraman. He would further submit that the part of the suit property was sold by defendant No.1 to other defendants, but the plaintiff failed to amend her plaint. He would also submit that defendant No.1 has specifically denied that the plaintiff is the daughter of Aheli Bai, no issue was framed in this regard and there is no documentary evidence to establish that the plaintiff was the daughter of Aheli Bai. He would further contend that the burden to prove t