Decided on October 07,2005



- (1.) This second appeal under Section 100 of the Code of Civil Procedure, is directed against the judgment and decreed dated 22-7-1991 passed by 1st Additional District Judge, Raigarh, in Civil Appeal No. 15-A/90 arising out of the judgment and decree dated 2-1-1990 passed by 3rd Civil Judge, Class II, Raigarh, in civil Suit No. 62-A/87 whereby reversing the judgment and decree passed by the trial Court, decreed the suit in favour of the plaintiffs/respondents Nos.1 and 2.
(2.) Plaintiff /respondent Nos. 1 and 2 filed a suit for declaration and possession of the suit land as also sought declaration that the sale deed dated 3-5-1967 executed by deceased Sadvo in favour of defendant No. 1 / appellant, transferring the suit land in her favour is not binding on them on the averment that the father of the plaintiffs/respondents Nos.1 and 2 and deceased Sadvo were real brothers having 4.04 acres of agricultural land at village Nawapara. They were in joint family and were cultivating jointly. After the death of Kajal Ganda, father of the plaintiffs/respondents Nos.l and 2, the property remained joint in the name of plaintiffs/respondents Nos.1 and 2 and Sadvo. The land was also in their joint possession, but without knowledge of plaintiffs/respondents Nos. 1 and 2, Sadvo sold one acre of land for consideration of Rs. 1400/- to defendant No. 1 /appellant vide a registered sale deed dated 3-5-1967 and thereafter Sadvo died. Defendant No. 1/appellant filed an application for mutation. The same was objected by plaintiffs/respondents Nos.1 and 2, but the Tahsildar, Raigarh vide his order dated 30-3-1977 dismissed the objection and mutated the land in favour of defendant No. 1/appellant. By incorporating amendment they further pleaded that on 15-6-1985 they have been disposed from the suit land.
(3.) Defendant No. 1 appellant denied the plaint allegations and averred that the father of the plaintiffs/respondents Nos. 1 and 2 and his brother Sadvo entered to partition and were separated. They were living separately and also enjoying the lands received by them in their respective shares. Some of the lands received by Kajal Ganda in his share have been sold by the plaintiffs/respondents Nos. 1 and 2 and the plaintiffs/respondents Nos.l and 2 are in possession of the remaining land. Sadvo obtained the suit land in his share and was in exclusive possession of the same. Sadvo sold the land to her and also delivered possession and since then she is in continuous possession over the suit land. Tahsildar, Raigarh, mutated the land in her name validly and in accordance with law.;

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