GULABSINGH Vs. MANORAMABAI

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the judgment and decree passed by IInd Additional District Judge, Khargone (West Nimar) in Regular Civil Appeal No.7A/96 whereby the suit filed by plaintiff for declaration, partition and possession was partly decreed in respect of agricultural land admeasuring 1.05 acres and Charnoi land admeasuring 4 acres was decreed.

(2.) AT this stage, the following facts are not in dispute. One Gangaram was the common ancestor of Jalamsingh and Umraosingh. Plaintiff Gulabsingh and respondent No.2 Ganpatsingh are the sons of Umraosingh, who passed away somewhere in the year 1980. The branch of Jalamsingh is represented by respondents No.3 to 10. It is not disputed that no relief is claimed against respondents No.3 to 10 and they were joined in the suit as formal party. It is also not in dispute that by a registered sale deed dated 24.04.1979, Umraosingh sold agricultural land bearing Khasra No.24 area 5.06 acres situated in village Muklispura in favour of Smt.Manoramabai, respondent No.1. It is also not disputed that Umraosingh after partition with Jalamsingh constituted his own Hindu joint family with Gulabsingh and Ganpatsingh. The community interest between Umraosinghy, Gulabsingh and Ganpatsingh continued up to 1974 and in 1974 a partition was effected between them. After the partition, Umraosingh lived with Ganpatisngh. Umraosingh had executed a registered will in favour of Ganpatsingh and bequeathed his share to Ganpatsigh.

(3.) LEARNED trial Judge on due consideration of oral as well as documentary evidence adduced by the parties found against the plaintiff, therefore, dismissed the suit. It was found that there was a partition between Umraosingh and his two sons Gulabsingh and Ganpatsingh. It was found that the sale deed executed by Umraosingh in favour of respondent No.1 was not a nominal sale deed as claimed by the plaintiff. It was also found that Umraosingh by a registered will had bequeathed his share to Ganpatsingh and, therefore, plaintiff was not entitled to any relief in the suit property. The trial Court also found that the suit was barred by time. With these findings, trial Court dismissed the suit. At this stage, it is relevant to point out that on the same allegations plaintiff had filed another suit against Smt.Radhikabai, who had also purchased Khasra No.25 by a registered sale deed. Both the suits were dismissed by the trial Court as aforesaid. Against the judgment and decree passed by the trial Court, plaintiff preferred two separate appeals which were registered as Civil Appeal No.7A/96 and 6A/96. By a common judgment dated 25.04.2000, lower appellate Court partly allowed appeals in respect of lands situated in village Banihar admeasuring 1.05 acres and the land admeasuring 4 acres, as is stated herein above, but declined to grant any further relief to the plaintiff either in respect of the sale deeds made by Umraosingh in favour of Smt.Manoramabai or Radhikabai or the property covered by the will executed by Umraosingh in favour of Ganpatsingh. The lower appellate Court also found that the suit was within limitation. Against the said judgment and decree passed by the lower appellate Court, plaintiff preferred two appeals which were registered as Second Appeal No.264/2000 ­ Gulabsingh Vs. Smt. Manoramabai and others (present appeal) and Second Appeal No.334/2000 ­ Gulabsingh Vs. Smt.Radhikabai and others. It is relevant to point out that Second Appeal No.334/2000 ­ Gulabsingh Vs. Smt.Radhikabai stands dismissed for want of prosecution in view of the order dated 03.02.2001 which has attained finality. So we need not to concern ourselves with the sale deed executed by Umraosingh in favour of Radhikabai. The present appeal was admitted for final hearing and after service of notice of appeal, respondents No.1 & 2 have preferred cross -objection, therefore, we have heard learned counsel for the parties at length on the appeal as well as cross objection.