HARICHAND Vs. DHARAMPAL SINGH BABA

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is directed against the order passed by learned Single Judge of the High Court of Madhya Pradesh at Gwalior on 22.8.1989 in First Appeal No.1 of 1975 whereby the learned Single Judge set aside the judgment and decree of the trial court and allowed the appeal and dismissed the suit. Aggrieved against this order the present special leave petition was filed but prior to this one L.P.A. against this order was filed before the Division Bench of the High Court of Madhya Pradesh which came to be registered as L.P.A.No.55 of 1989 whereby the Division Bench held that the present L.P.A. was not maintainable as the State has abolished the same and the said decision was upheld by this Court. Subsequently, the State Government restored the same but in the meanwhile, this appeal came up before the Division Bench and the Division Bench of the High Court dismissed the L.P.A. as not maintainable in view of the decision of the High Court in Harshlal Dwivedi vs. State of M.P.and Ors decided on 29.8.2005. Thereafter the present appeal was filed against the order dated 22.8.1989 passed by learned Single Judge in F.A.No.1 of 1975. Office reported that the appeal is barred by 5866 days. Therefore, an application was filed for condonation of delay in filing the S.L.P. before this Court and accordingly the delay was condoned by this Court on 15.9.2006. Now, the appeal has come up for final disposal.

(3.) We have heard learned counsel for the parties and perused the record. A suit was instituted on 17.2.1964 by Shiv Singh, the father of the plaintiff- Bapu Saheb Temak. However during the pendency of the suit, the plaintiff was not interested in prosecuting the suit. Therefore, Defendant No.6- Hari Chand secured an order from the Court and his interest was restricted to the question raised in the plaint by virtue of an agreement for sale executed in his favour by Shiv Singh on 18.3.1967. The suit was accordingly contested between Defendant No.1- Dharmawati (deceased) and Defendant No.6- Hari Chand. Earlier, Suit No.25 of 1962 was filed by Bapu Bhaiya Temak, the father of the plaintiff against the State Government for recovery of rent in respect of the suit premises for a period of 26.9.1948 to 26.6.1950 and in that suit Janki Bai was impleaded as Defendant No.2. Defendant No.1- State Government pleaded that it was prepared to pay the rent but the question of entitlement of rent was the issue between the plaintiff and defendant No.2. Two issues were framed in that suit which read as follows :