ORDER

1. This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 27.2.2019 passed by Second Civil Judge Class-II, Gwalior in Civil Suit No.125A/2016 by which the application filed by the petitioner under Order 6 Rule 17 of CPC has been rejected.

2. The necessary facts for disposal of the present petition in short are that the petitioner filed a suit for declaration of title and permanent injunction on the allegation that the petitioner is the owner and is in possession of survey No.548 area 2.15 Beegha, survey No.553 area 2 Beegha, survey No.554 area 4 Beegha and survey No.555 area 8 Biswa situated in village Purasani, Tehsil and District Gwalior.

3. It is the case of the petitioner that the land in question is an ancestral land and earlier it was recorded in the name of the father of the petitioner. After the death of his father, the petitioner and his brother Kartar Singh became the joint owner of the property and, accordingly, their names were recorded in the revenue record in place of their father late Hukum Singh. Kartar Singh expired on 31.7.2003 and he was unmarried accordingly, it was claimed that the petitioner has become the sole owner of the property in question after the death of his brother late Kartar Singh. Accordingly, the name of the petitioner was mutated in the revenue records in respect of the entire property in dispute.

4. It the case of the petitioner that since the respondent No.1 Vijay Singh (the respondent No.1a to e, are the legal heirs of Vijay Singh) was intending to grab the property, therefore, he prepared a forged agreement purportedly executed by his brother late Kartar Singh and on the basis of the said forged agreement to sell, he filed an application before the Tahsildar, Gwalior for recording of his name on the basis of the possession. The said application was objected by the petitioner and, accordingly, it was dismissed by order dated 7.7.1999 passed in Case No.153/98-99/B-121. Thereafter, the respondent preferred an appeal before SDO, Gwalior and the appeal was allowed and the matter was remanded back to the Court of Tehsildar with a direction to decide afresh after giving an opportunity of hearing. Thereafter, by order dated 13.2.2012 the Tehsildar once again held that the petitioner is the solitary owner of the property and the respondent No.1 has failed to prove the “Will” purportedly executed by late Kartar Singh. It was also observed that earlier in the application which was filed by the respondent No.1 for recording of his name on the basis of possession, he had not referred to the “Will” executed by late Kartar Singh. On the contrary, the application was preferred on the ground of an agreement purportedly executed by late Kartar Singh. It was alleged that the respondent No.1 preferred an appeal before the SDO, Gwalior and also filed a suit for declaration of his title. The appeal filed by the respondent No.1 was rejected by SDO, Gwalior by mentioning that since the respondent No.1 has filed a civil suit and by order dated 23.7.2012, an interim order has been passed, therefore, the appeal was dismissed. Thereafter, the respondent No.1 in the suit filed by him, filed an application under Order 23 Rule 1 of CPC which was rejected by order dated 5.1.2016. It is alleged that the respondent No.1 thereafter filed an application for review of order dated 31.10.2012 passed by the SDO, Gwalior and the said review has been allowed by the SDO by order dated 30.6.2015 and the name of the respondent No.1 has been directed to be mutated in place of late Kartar Singh. It was further pleaded that the petitioner has already preferred an appeal against the order of SDO, Gwalior before the Additional Commissioner, Gwalior Division, Gwalior which was registered as Appeal No.407/14-15/Appeal and by order dated 6.1.2016 the appeal was dismissed on the ground that the appeal would lie before the Collector, Gwalior. Accordingly, the petitioner has pre