PURUSHOTTAM GOPAL CHAUDHARI Vs. HARCHAND SHIVRAM CHAUDHARI

JUDGEMENT

(1.) This is defendants Second Appeal. The brief facts giving rise to this appeal are as under : The plaintiff-respondent filed a suit for recovery of possession of the disputed land and also for recovery and mesne profits on the allegations that the disputed two plots were originally owned by Ravjibhai Shivram, real brother of the plaintiff-respondent. Ravjibhai died somewhere in 1943. Kesarbai was his widow. She was given two suit fields in lieu of her maintenance by way of limited estate. Kesarbai having no right to transfer the said fields transferred the same to the defendant her sister's son through a sale-deed dated 10.5.1956 for a sum of Rs. 4,000/-. It was alleged that the said sale-deed was bogus so as to nullify the rights of the plaintiff-respondent over the said property. The defendant on the basis of the sale-deed got his name entered in the revenue record. The plaintiff being the reversioner claimed inheritance over the suit property after the death of Kesarbai, The plaintiff-respondent filed earlier Suit No. 58/66 claiming declaration that the sale-deed executed by Kesarbai was null and void and prayer was also made for setting aside the same. The defendant was also party in the earlier suit. The suit was decreed and only declaratory relief was granted on 11.8.1969. Thereafter, the defendant filed an appeal which was dismissed on 29.7.1972 being time barred. Since possession was not delivered inspite of the aforesaid litigation the instant suit was filed.

(2.) . The defendant resisted the suit on the ground that the disputed land was self acquired property of the husband of Kesarbai and she was entitled to enjoy the said properties as absolute owner. She inherited the properties in suit from her husband who died on 18.1.1943. After the death of Bai Kesar the defendant also claimed entitled to the said property by inheritance as heir of Bai Kesar. It was also pleaded that the plaintiff has no right in the disputed property. The sale-deed was said to be valid. Regarding the earlier judgment in the earlier litigation it was pleaded that the same is not binding upon the defendant because he was not given opportunity of hearing. Plea of adverse possession and limitation was also taken by the defendant. Another plea was that the defendant was cuiltivating the suit plots through Kesarbai and as such he would be deemed to be tenant under the provisions of Sec. 4 of the Tenancy and Agricultural Lands Act, 1948. The maintainability of the previous suit was also challenged.

(3.) . The Trial Court decreed the suit of the plaintiffs repelling the contention of the defendant. An appeal was filed which was also dismissed. Hence, this Second Appeal.