Judgment on Board

1. The present Second Appeal has been preferred by the defendants under Section 100 of the Code of Civil Procedure, 1908, assailing the impugned judgment and decree dated 03.11.2018 passed by the learned 2nd Additional District Judge, Surajpur (C.G.) in Civil Appeal No. 14-A/2014 (Surjan Ram (dead) through LRs Smt. Jhulmati & Ors. vs. Masat Ram & Ors.), affirming the judgment and decree dated 18.12.2013 passed by the learned 2nd Civil Judge, Class-I, Surajpur, District Surajpur (C.G.), in Civil Suit No. 16-A/2013 (Masat Ram & Ors v Surjan & Ors.), whereby the civil appeal filed by the appellants/ defendants was dismissed. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the Trial Court.

2. The plaintiffs instituted the present suit against the defendants seeking declaration of title, partition, delivery of possession and permanent injunction in respect of the suit property situated at Village Amgaon, Tahsil Surajpur, as detailed in Schedule ‘A’ of the plaint, pleading inter alia that the suit property was originally acquired as part of the joint Hindu family property and came to the share of the parties pursuant to earlier civil and revenue proceedings; although the property stood recorded in the name of defendant No.1 Surjan in the revenue records, the plaintiffs and defendants have been jointly cultivating and possessing the same as co-sharers, and the plaintiffs are entitled to 1/3rd share therein. The property traces its origin to the estate of their ancestor Jaimangal, and thereafter devolved within the joint family, remaining in joint possession of all members; that despite such joint status, the application filed by the plaintiffs for mutation was wrongly rejected by the Tahsildar; and the defendant No.1, without any authority, executed gift deeds in favour of defendant Nos.2 to 4 in respect of portions of the joint family property, which are illegal, void and not binding on the plaintiffs, and on the basis of such documents, the defendants have got their names mutated in collusion with revenue authorities, thereby necessitating the filing of the present suit.

3. Per contra, defendant Nos. 1 to 4, by filing their written statement, have denied the averments made by the plaintiffs and contended that the suit property is the self-acquired/service land of defendant No.1, over which he has exclusive title and possession, and the plaintiffs have no right, title or interest therein. It is further contended that the earlier civil and revenue proceedings do not confer any right upon the plaintiffs and the mutation order passed by the Naib Tahsildar is illegal, against which an appeal is pending. According to the defendants, the suit property is not a joint Hindu family property but a separate property granted by the State to defendant No.1 under a patta, and he has been in exclusive possession thereof since inception. It is also pleaded that the ancestral properties had already been partitioned long back and the suit property is distinct therefrom. The defendants further contended that the plaintiffs were never in possession of the suit property and have filed the present false and frivolous suit out of greed. Defendant No.1 had full authority to execute the registered gift deeds in favour of defendant Nos.2 to 4, pursuant to which lawful mutation has been carried out. Hence, the suit is without cause of action, barred by limitation, not maintainable, and also liable to be dismissed for want of notice under Section 80 of the Code of Civil Procedure.

4. Defendant Nos. 5 & 6 also filed their written statement by supporting the case of the plaintiffs, contended that the suit property is the joint Hindu family property of the parties, in which they are also entitled to a 1/3rd share. It is pleaded that after the death of Jagat (husband of defendant No.5 and father of defendant No.6), they have stepped into his share and are entitled t