Rakesh Tiwari - (1.) HEARD learned counsel for the parties and perused the record.
(2.) THE plaintiff-respondent No. 1 instituted Original Suit No. 253 of 1983 against the defendants for the decree of declaration with the allegation that Smt. Kiran Devi-defendant No. 4 is not a legally wedded wife of Late Lal Singh, father of the plaintiff that the plaintiff being the only daughter of Late Lal Singh is the sole heir to the property of her father. In the suit prayer was made for mandatory injunction to the effect that order of mutation in favour of Smt. Kiran Devi dated 7.2.1980 or of any other date be declared null and void and not binding upon the plaintiff. A prayer for cancellation of alleged sale deed dated 28.7.1980 executed by Smt. Kiran Devi in favour of defendant Nos. 1 to 3 holding it to be null and void and not binding upon the plaintiff, was also made. In the alternative it was prayed that Court may declare that the sale deed in question is subject to the maintenance and expenses for the marriage of plaintiff and for permanent injunction that the defendants be restrained to interfere in the peaceful possession of the plaintiff. The suit was contested by the defendants No. 1 to 3 by filing written statement denying plaint allegation. Defendant No. 4, Smt. Kiran Devi filed separate written statement denying the plaintiffs allegation in the plaint. The defendants in their written statement alleged that Lal Singh died on 23.9.1979; that wife had died before his death; that plaintiff was one and half year old when her mother died and; that after the death of his wife, Lal Singh married with Kiran Devi. The case of the defendants before the trial Court was that after the death of Lal Singh, defendant No. 4 Kiran Devi being his widow inherited the property of Lal Singh as such her name was mutated in the mutation proceeding on the agricultural land of Lal Singh by revenue authorities. Thereafter, the defendant No. 4 executed sale deed dated 28/7/1980 of the agricultural land in favour of defendant Nos. 1 to 3 whose names were mutated in respect of agricultural holdings of late Lal Singh and they are in its possession since then. The trial Court by judgment and order dated 12.3.2008 decreed the suit of the plaintiff after holding that defendant No. 4, Kiran Devi is not legally wedded wife of Late Lal Singh and the sale deed dated 28.7.1980 executed by her was declared null and void. The Court also granted permanent injunction to the plaintiff directing the defendants not to interfere with the peaceful possession of the plaintiff.
(3.) AGGRIEVED by the aforesaid judgment dated 12/3/2008, the defendants No. 1 to 3 filed Civil Appeal No. 6 of 2008; Smt. Sukha Devi and others v. Mithilesh Kumari, against the judgment and decree passed by the trial Court before the Additional District Judge, Anoopshahar(Buland Shahar) which was dismissed on 19/2/2010. Against the judgment and order 19/2/2010, the defendants-appellants have filed the present second appeal challenging the validity and correctness of the aforesaid order dated 19/2/2010 passed by the Additional District Judge, Anoopshahar (Bulandshahar)in Civil Appeal No. 67 of 2008; Smt. Sukha Devi and others v. Mithilesh Kumari, dismissing defendant-appellants' appeal arising out from decree and judgment dated 12.3.2008 passed in O.S. No. 253 of 1983; Mithilesh Kumari v. Smt. Sukh Devi and others. The defendant-appellants have prayed for setting aside the judgment and decree passed by the Courts below on the ground that defendant No. 4 was recorded Bhumidhar with transferable rights of the plot in dispute and she had legal right to transfer the land to defendants No. 1 to 3; that because the plot in dispute being agricultural land the plaintiff Mithilesh Kumari should have filed suit under Section 209 and 229-B of U.P.Z.A. and L.R. Act for declaration of her title for which the revenue Courts had jurisdiction and not the Civil Courts.;