JUDGEMENT

This Second Appeal under Section 100 CPC has been filed against the judgment and decree dated 08.08.2006 passed by Second Additional District Judge, Damoh in Regular Civil Appeal No.15-

A/2006 arising out of judgment and decree dated 04.12.2000 passed by Second Civil Judge, Class-II Damoh in Civil Suit No.89A/1999.

2. The facts necessary for disposal of the present appeal in short are that the plaintiff/respondent No.1 filed a suit for partition and permanent injunction as well as for declaration of sale deed dated 21.11.1997 as null and void. It is the case of the plaintiff that the plaintiff and the defendant No.1, namely; Smt. Sheela Bai/appellant are real sisters. They are the daughters of Hukum Singh S/o Natthu Singh. The ancestral properties of Hukum Singh S/o Natthu Singh were situated in Village Bhorkheda, Tahsil and District Damoh. On 10.06.1993, Hukam Singh verbally partitioned the property and a memorandum of partition was prepared on 10.06.1993, which was signed by Hukum Sing and the appellant/defendant as well as the plaintiff put their thumb impressions. Some of the property was kept by Hukum Singh with him. According to the plaintiff, the property, which was given to the plaintiff and the defendant No.1 in partition, has been mentioned in paragraph 1 of the plaint. It was the case of the plaintiff that the defendants No.1 and 2 are claiming that Hukum Singh had executed a sale deed in their favour on 21.11.1997 in respect of Khasra Nos.62, 111, 205, which had fallen to the share of the plaintiff and accordingly, it was claimed that the sale deed dated 21.11.1997 is forged and is null and void because Hukum Singh was not keeping well and he was bed ridden and had very poor eye vision and during his last days, he never went outside the village. It was the case of the plaintiff that she is in possession of the property in dispute from the date of partition and the defendants were never in possession of the property in dispute. Accordingly, the suit for permanent injunction as well as for declaration of sale deed dated 21.11.1997 as null and void was filed.

3. The defendants No.1 and 2 filed their written statement and claimed that Hukum Singh has executed a sale deed in respect of the property mentioned in paragraph 2 of the plaint and therefore, by virtue of sale deed, the defendant has become the owner and in possession of the land in dispute.

4. The trial Court after framing issues and recording evidence, held that the sale deed executed by Hukum Singh in favour of defendant No.1/appellant was forged and is null and void and accordingly, it was held that the plaintiff and the defendant No.1 are having 1/2 share in the ancestral property.

5. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which has been decreed partially and it has been held that Hukum Singh had partitioned the property during his lifetime and 1/3rd share each was given to the plaintiff as well as the defendant No.1 and remaining 1/3rd share was kept by Hukum Singh for his own purposes. The sale deed dated 21.11.1997 executed by Hukum Singh in favour of defendant No.1 was also upheld but it was held that after partition, since Hukum Sing was having only 1/3rd share in the property in dispute therefore, he could not alienate in excess of what he was having on the date of execution of sale deed. Therefore, it was held that the plaintiff is entitled for 1/3rd share in the disputed property, whereas the defendant No.1 is also entitled for her 1/3rd share in the disputed property apart from the property alienated by Hukum Singh by registered sale deed dated 21.11.1997.

6. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellant that the Courts below have committed a material illegality by holding that Hukum Singh had partitioned the property during his lif