(27.09.2021)

F.A.No.245/2010

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 05.02.2010 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

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F.A.No.245/2010

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

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the year 1977-78. Rudra Singh died on 05.02.1979 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 11.08.1982 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

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F.A.No.245/2010

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, then the

plaintiff