CAV Judgment

Heard on admission.

1. This Second Appeal under Section 100 of Civil Procedure Code, has been filed by the plaintiff/appellant against the judgment and decree dated 08.11.2011 passed by 2nd Additional District Judge, Ambikapur District Sarguja in Civil Appeal No. 90A/2011 affirming the judgment and decree dated 29.08.2008 passed by Civil Judge Class-II Camp Court, Ambikapur District Sarguja in Civil Suit No. 14A/2008.

2. The necessary facts for the disposal of the present appeal, in short, are that the plaintiffs had instituted a civil suit on 11.02.2004 for declaration of title and permanent injunction in respect of land bearing khasra No. 1239 area 5.62 hectares, situated at village Belkharikha, which was recorded in the name of Kushalsai S/o. Bargah Kanwar as per Sarguja State Survey Settlement. It has been further pleaded in the plaint that the suit land was self acquired property of Kushalsai. The plaintiffs and defendants belonged to Kunwar community. Father of plaintiff No.1 and father of defendants No. 2 to 4 are the brothers. As per plaint averments daughter of Kushalsai namely Jamraso was married to Baijnath Singh as per their custom. There was no direct relation between Baijnath Singh and defendants Jainath Singh. Kushalsai had given the said suit land to Jamraso just after her marriage and she was in possession of the said suit land till her life and thereafter Baijnath was in possession of the suit land. After the death of Jamraso and Baijnath, plaintiff's father Shiv Prasad- was in possession of the suit land. Subsequently, after the death of Shiv Prashad, the plaintiffs were in possession of the suit land.

3. As per plaint averment, it has been contended by the plaintiffs that the defendants have no right or title over the suit land and the plaintiffs have never accepted the title of the defendants over the suit land. But Jainath was a clever man and without informing Baijnath Singh and Shivprasad, he fraudulently mutated his name in the revenue record and in violation of Rule 27 or 32 of the Transfer Rules. In the year 1997, Jainath Singh submitted an application for partition before Tahsildar Ambikapur and in the said revenue proceeding the plaintiffs have clearly mentioned the fact that defendant Jainath has no right or title over the suit land as Kushalsai had given the said land to Jamraso on her marriage. Even Jainath Singh had assured the plaintiffs that even after recording of his name in the revenue record, it does not affect the right of the plaintiffs over the suit land. Relying upon the contention of Jainath Singh, the plaintiffs have not made any attempt for deletion of his name in the revenue record after his death and thereafter the defendants created dispute over the suit, which compelled them to file present suit.

4. On such pleadings, the plaintiffs have filed suit for grant of permanent injunction and declaration over the suit land bearing khasra no. 1239 area 5.62 hectares, situated at village Belkharikha and also prayed that the defendants be restrained from interfering with the peaceful possession of the suit land.

5. The defendants have filed their written statement contending that the land bearing khasra no. 1239 area 5.62 acres has been recorded in the name of Khusalsai Kanwar S/o. Bargah Kanwar in view of Sarguja State Survey Settelment and that it was his self acquired property. But admitting the fact that Jainath Singh and Baijanth Singh are real brothers. It was specifically denied that plaintiff's father and defendant's father are real brothers and highlighting the factual position with regard to the suit land contending that total 5.62 acres of land was situated at village Balkhariya out of which 2.50 acres of land in which Jainath Singh and Baijnath Singh were doing agricultural work and the remaining part of the said land was in possession of Kushalsai. On 13.06.1968, Mangalsai has obstructed the land in possession of Baijnath Singh and Jainath Singh and therefore Baijnath