HARIBAX CHOTALAL Vs. PUNAJI JANUJI THOMBE

JUDGEMENT

(1.) THIS appeal is filed by the unsuccessful plaintiff Haribax whose suit for possession of field survey No. 13/2, area 3 acres 30 gunthas, revenue Rs. 16 -2 -0, situate at mouza Songir, in Belapur taluq of Akola district, was dismissed by the First Additional Judge to First Civil Judge, Class It, Akola, in Civil Suit No. 428 -A of 1951 on July 25, 1952. His appeal in the Court of the First Additional District Judge, Akola, which was Civil Appeal No. 40 -A of 1958, was also dismissed on January 31, 1959.

(2.) THE plaintiff claims possession on the ground that this field was put to sale by a revenue Court on October 18, 1948, in Revenue Case No. 7 XXXI 1946 -47 and that he was declared the highest purchaser for Rs. 150. The sale was confirmed on November 25, 1948, and he has been given a sale certificate under Section 16.1. of the Berar Land Revenue Code declaring him to be the purchaser of this property. The sale -certificate is dated February 18, 1949, and is filed as exh. P -1 in the lower Court. The plaintiff, therefore, issued notice to defendant No. 1 Punaji, who was in possession of the field under a lease from defendant No. 2, Not having obtained possession he issued another notice on December 3, 1949, As possession was not given the plaintiff filed the present suit on November 22, 1950. The plaintiff claims possession as he has become owner of the property by virtue of the auction -sale. The plaintiff has also claimed mesne profits for the years 1948 -49 to 1950 -51. Along with the plaint the plaintiff had filed a certified copy of an entry in the record of rights for the year 1946 -47. This copy seems to have been obtained on September 9, 1946. This copy shows that Gajadhar and three others were recorded as occupants of survey No. 13/2, assessed to land revenue of Rs. 16 -2 -0 having obtained possession on foot of a decree in Civil Suit No. 297 of 1928 on April 7, 1929, in respect of one half interest. In the column for acres, no figure is given and is kept blank.

(3.) THE first Court decided this suit against the plaintiff by its judgment dated July 25, 1952. Against this judgment and decree the plaintiff filed an appeal. That appeal was allowed on June 24, 1954, by the appellate Court. At the appellate stage the appellate Court had admitted to record certain copy of an entry in the record of rights at the instance of the appellant. That certified copy showed that survey No. 13/2 had an area of 3 acres 30 gunthas and revenue of' Rs. 16 -2 -0 and was recorded in the name of plaintiff Haribax. In column 10 the source of title was said to be the revenue sale. Against this judgment and decree, the respondents preferred Second Appeal No. 583 of 1954 which was decided by this Court on December 17, 1957. It was held that the lower appellate Court should not have admitted fresh evidence without giving any opportunity to the opposite side to counteract the evidence thus admitted at that stage. The judgment and decree of the lower appellate Court was, therefore, set aside, and the appeal was remanded to that Court for being dealt with according to law.