GAFOORSHAH KADARSHAH FAKIR Vs. RAMRAO JAIRAM SHAHANE

JUDGEMENT

(1.) HEARD the learned counsel for the parties.

(2.) THE second appeal is preferred against the judgment passed by the Ad hoc Additional District Judge, Achalpur, on 17/8/2005 reversing the judgment and decree passed by the Civil Judge, Junior Division, Achalpur, in Regular Civil Suit No. 33/1987 on 23/4/1991.

(3.) A few facts giving rise to the controversy and to this second appeal are stated thus: the appellant is the original defendant. A suit was filed by the plaintiffs for possession of the suit property and mesne profit. It was the case of the plaintiffs that the field Survey No. 30/3 admeasuring 4 acres was the ancestral property of the plaintiffs. The plaintiffs inherited the same. The plaintiff no. 1 was in actual and physical possession of the suit field as the owner thereof till 4/3/1979. During the life time of the father of the plaintiff no. 1, the suit field was mortgaged with the Land Development Bank for the loan obtained by the plaintiffs for the digging and construction of the well. Since there were outstanding dues of the Land Development Bank to the extent of Rs. 2,500/- on 4/3/1979, the plaintiff no. 1 entered into an agreement with the defendant in March, 1979 whereby the defendant agreed to clear the dues of the Land Development Bank and also paid an amount of Rs. 200/- to the plaintiff no. 1. Certain other dues were also paid by the defendant. The amount of Rs. 4,000/- which was advanced by the defendant was payable by the plaintiffs to the defendant and the charge on the suit property was agreed to be released on the plaintiff no. 1 repaying the amount of Rs. 4,000/- to the defendant. The defendant, according to the plaintiffs, had agreed to hand over the possession of the suit field to the plaintiff on receiving an amount of Rs. 4,000/ -. It is in this background that the plaintiff no. 1 Ramrao executed a document known as Baibul-wafa in favour of the defendant on 4/3/1979 and since then the defendant was cultivating the suit land as he was put in possession of the same. It is the case of the plaintiff that he repaid the amount of Rs. 4,000/- to the defendant, but the defendant did not had over the possession of the suit property to the plaintiff and also did not finalize the accounts. The plaintiff, therefore, filed the suit for possession of the suit property and also prayed for an inquiry into future mesne profits.