DEEPAK MOHANI MOHAN RAI Vs. JAINABAI MAHADEO WAGHARE

JUDGEMENT

(1.) This second appeal is preferred against the judgment and decree passed by the 6th Ad hoc Additional District judge, Nagpur, on 13-2-2004 in Regular Civil appeal No. 341/1992 whereby the judgment and decree passed by the 2nd Joint Civil Judge, junior Division, Nagpur, on 30-4-1991 in regular Civil Suit No. 794/1986 was reversed. When this second appeal came up for admission before this Court on 22nd February, 2005, the same was admitted on the following substantial question of law :

(2.) The brief facts which give rise to the present second appeal and to the substantial question of law framed herein above, are stated thus : the respondent is the original plaintiff. A suit was filed by the plaintiff Jainabai for perpetual injunction restraining the defendants from disturbing the peaceful possession of the plaintiff. In the alternative, in case it was found that the plaintiff was not in possession of the property, the plaintiff prayed for relief of possession. The suit property is a plot of land which was originally owned by one ramaswami. Ramaswami sold the said plot to plaintiff Jainabai under a registered sale deed dated 7-2-1986, for Rs. 7,000/ -. According to the plaintiff, the possession of the suit plot was handed over to the plaintiff and she constructed a hut on the suit plot. Ramaswami, in turn, had purchased the suit plot from one Jagannath somkuwar, on 17-6-1974 for the consideration of Rs. 2,000/ -. It was pleaded by the plaintiff that on 27-4-1986, she noticed that the defendants were demarcating the plot and trying to excavate the area and plaintiff, therefore, had to report the aforesaid fact to the Police Station.

(3.) The defendants filed their written statement and denied the claim of the plaintiff. It was the case of the defendants that the defendant No. 1 approached Jagannath somkuwar who wanted to dispose of the suit plot, in the month of December, 1973. Jagannath executed an agreement of sale in their favour and the consideration was agreed at rs. 10,000/ -. According to the defendant No. 1, he took actual physical possession of the plot. The agreement of sale was executed on 26-12-1973 and Rs. 8,000/- was to be paid at the time of registration of the sale deed, as Rs. 2,000/-were paid as an earnest amount. Since the defendant No. 1 had suggested that the sale deed should be executed in the name of the defendant no. 2, Jagannath had executed the same in favour of the defendant No. 2 in stead of the defendant No. 1. It was further pleaded by the defendants that they were already enjoying the possession of the suit plot towards part performance of the agreement of sale dated 26-12-1973. The title of the plaintiff was denied by the defendants and it was claimed that the plaintiff was never put in possession of the suit plot. It was lastly pleaded that the prosecution between Ramaswami and the plaintiff was void and the suit was liable to be dismissed.