JUDGMENT

1. During the pendency of this appeal, appellant Govind Singh Yadav has expired and his LRs have been brought on record.

2. This first appeal is filed by the appellant (original defendant No.1) under section 96 of the C.P.C. challenging the judgment and decree dated 5.2.2010 passed in Civil Suit No.7-A/2007 by the First Additional Judge to the Court of First Additional District Judge, Panna.

3. The facts leading to the present appeal lie in a narrow compass. Suffice it to say that plaintiff (respondent No.1 herein) filed a suit for declaration, partition and possession claiming that the land of survey Nos.1771, 2552, 2553, 2554, 3293, 3295, 3297, 3298, 3299, 3301, 3302, 3304 total area 160.75 acre was a joint family property of the plaintiff & defendants No.1 to 5 (respondents No. 2 to 5 & appellant herein). The land of survey No.2553 area 0.2 acre, survey No.2552 area 0.10 acre and survey No.2554 area 0.18 acre was within Dham Mohalla, Panna, which was being used for cultivating vegetables and remaining land was agricultural land and was being used for agriculture purpose. On the land situated in Dham Mohalla, houses bearing Nos.526 and 530 were constructed by defendant Govind Singh Yadav, but that property was also of undivided parental property.

Shankar Singh in his life time executed a gift-deed by which 25 acre of land Araji No.3302 was given to Dilip Singh (plaintiff) and 25 acre to Govind Singh (defendant No.1). In pursuance to the said gift-deed, the said land gifted to Dilip Singh and Govind Singh was mutated in the year 1970-71 and possession of the land was accordingly handed over to them. Since then the plaintiff and defendant No.1 have been cultivating the land and possessed the same. The government record was accordingly corrected showing the name of plaintiff and defendant No.1. Area measuring 16.91 out of the said land, got affected in the Ceiling and as such in the year 1970-71 the State Government was recorded as owner. The land measuring 3.48 hectare was sold to one Jagprasad in the year 1973-74 and land measuring 1.48 hectare was sold to one Hazari in the year 1973-74 by Shankar Singh and possession was also given to them. After this sale, only 6.595 hectare land was remaining out of survey No.3302 and the said land recorded in the name of Shankar Singh. After Shankar Singh breathed his last, his remaining disputed land got recorded in the name of Rudra Singh in the year 1977-78. Rudra Singh died on 5.2.1979 then the land got jointly recorded in the name of plaintiff & defendants No.1 to 5 alongwith the name of wife of Rudra Singh namely Tarabai. Tarabai also died in the year 1991 and thereafter the disputed land recorded jointly in the name of plaintiff & defendants No.1 to 5 in government record.

It is claimed that the land as also houses situated over the land, are undivided joint family property of the plaintiff & defendants No.1 to 5; no partition till date has taken place and at the time of death of Shankar Singh, total land was 23.389 hectare recorded in the name of plaintiff and defendants.

Defendant No.1 Govind Singh being an elder son and head of the family was looking after the property and got power of attorney executed in his favour by other persons of the family. The power of attorney was executed by plaintiff on 11.8.1982 in favour of defendant No.1 in which all rights related to property were given to defendant No.1 including right of sale. The power of attorney also got executed by defendants No.2 to 5 in favour of defendant No.1 and out of the sale executed by defendant No.1 by virtue of power of attorney, the amount received got used by defendant No.1 for his personal use. The plaintiff raised objection about the selling of the joint family property by defendant No.1 then only he came to know that the sale was being executed in pursuance to power of attorney dated 11.08.1982, t