RATAN SINGH Vs. SHALIGRAM

JUDGEMENT

(1.) PLAINTIFF has filed the present Letters Patent Appeal aggrieved by the dismissal of suit by learned single Judge, which was decreed by the Trial Court.

(2.) THE case has a chackered history. The present suit was filed by Ratan Singh and Bahadur Singh sons of Tulsiram against Shaligram and State of M. P. for possession of the land and mesne profit, on the allegation that one Sunderlal was the Bhumiswami of Survey No. 303/2 in area 15. 50 acres of agricultural land situated at Mouza Sangalkheda Khurd in the district of Hoshangabad. The said Sunderlal died in the year 1964. The suit was filed for restoration of 7 acres of land out of Survey No. 303/2 marked in the map as "abcd" which was also the subject matter of an earlier suit bearing No. 4-A/72 filed in the Court of IInd Additional District Judge, Hoshangabad. As the judgment and decree was passed on 2-7-1964, it was held that the present plaintiff would be entitled for restoration of possession in the event he pays a sum of Rs. 7,000/to the defendant No. 1. Conditional permanent injunction was granted in favour of defendant No. 1 till the payment of Rs. 7,000/- by the present plaintiff, he was entitled to protect the possession. In the present suit the plaintiff had averred that pursuant to a judgment and decree passed on 22-7-74 in Civil Suit No. 4-A/72, amount of Rs. 7,000/- as ordered was deposited in Court on 25-7- 74 to be paid to the defendant. But, the defendant did not accept the deposit. Hence, after serving notice, present suit was filed for direction to restore the possession and also for mesne profit of Rs. 3,500/-for the year 1974-75 and for future mesne profit till the possession is delivered.

(3.) THE factual matrix as unfolded in the plaint indicates that the oral death bed gift of 2 acres ofland was made by deceased Sunderlal to his sister's son Raisa. Gilkiya Bai was the widow of Sunderlal. The said Gilkiya Bai executed a registered sale-deed dated 25-6-64 of 8 acres of land out of Survey No. 303/2 in favour of Ratan Singh and Bahadur Singh, present plaintiffs and placed them in possession. On the same day, Sunderlal's sister's son Raisa sold 2 acres of land which was gifted to him, to the plaintiffs for a consideration of Rs. 3,000/- on 25-6-64. Thus, by the two registered sale-deeds, the plaintiff had purchased 10 acres of land out of Survey No. 303/2. One Mishrilal raised a dispute with respect to 10 acres of land purchased by the plaintiff, which led to filing of Civil Suits No. 48-A/64, renumbered subsequently as 24-A/66, 14-A/58 and 4-A/72 in the Court of IInd Additional District Judge, Hoshan-gabad, decided on 22-7-1974. Renumbered Civil Suit No. 4-A/72 was filed by Mishrilal against Ratan Singh and Bahadur Singh, the present plaintiffs and their vendor Raisa and Gilkiya Bai. Mishrilal died during the pendency of Civil Suit No. 4-A/72. Shaligram present defendant was substituted as the plaintiff after the death of Mishrilal. In the previous suit claim of Mishrilal, predecessor of present defendant Shaligram was that he was Bhumi Swami of Survey No. 303/2 in area 15. 50 acres situated at Mouza Sangalkheda Khurd and on 28-3-63 Sunderlal had agreed to sell to Mishrilal whole of the Survey No. 303/2 in area 15. 50 acres for a consideration of Rs. 8,000/-, out of which Rs. 7,000/-were paid on the date of the agreement and was placed in possession of the entire Survey No. 303/2. The remaining consideration of Rs. 1,000/- was to be paid before the Registrar. However, dispute arose between the deceased Sunderlal and Mishrilal. Proceeding under Section 145, Cr. P. C. was also drawn. However, both the parties entered into a compromise on 19-2-64. Sunderlal had agreed to give 7 acres of land to Mishrilal on 17-2-64. Sunderlal had sold 5. 50 acres of land by registered sale-deed to Mishrilal for a consideration of Rs. 2,000/ -. After the said compromise, Mishrilal was in possession of 5. 50 acres of land out of Survey No. 303/2 which is the western portion of the land by the side of the road and 7 acres of the land to the east of this land the agreement to sale was modified and superceded by the compromise dated 19-2-64. The area held by Mishrilal under the agreement of sale was marked by letters "abcd" in the map of Civil Suit No. 4-A/72. Mishrilal claimed the relief of permanent injunction restraining Ratan Singh and Bahadur Singh, the present plaintiffs from disturbing his possession over the area shown in the sketch map filed by him, shown as "abcd". The compromise entered into between the parties in the proceeding under Section 145, Cr. P. C. on 19-2-64, was filed in the Court in the previous suit. Mishrilal was placed in possession of only 5. 50 acres of land by Sunderlal while executing the registered sale-deed dated 17-2-64. Remaining land was sold by Sunderlal's widow Gilkiya Bai and sister's son Raisa to the present plaintiffs. A receiver was appointed in the previous proceedings under Section 145, Cr. P. C. Possession of the receiver shall be deemed to be the possession of the plaintiffs. In the previous civil suit, it was found that on 28-3-63, Sunderlal had agreed to sell the entire Survey No. 303/2 in area 15. 50 acres to deceased Mishrilal for Rs. 8,000/- and had obtained a sum of Rs. 7,000/- in advance from him and had delivered its possession to him and had agreed to execute registered sale deed after taking the remaining sum of Rs. 1,000/-, at the time of registration. It was further found that in supersession of agreement of compromise dated 17-2-64 was entered into and it was agreed that Mishrilal would remain in possession of 7 acres of land in lieu of aforesaid amount of Rs. 7,000/- and that Sunderlal further would also sell away 5. 50 acres of land to Mishrilal for a consideration of Rs. 2,000/- and it was found that besides 7 acres of land, 5. 50 acres more land was to be sold away and Sunderlal had executed a sale-deed dated 17-2-64 regarding 5. 50 acres of land. No conveyance with respect to 7 acres of land was ever executed. Thus, Mishrilal had become owner of 5. 50 acres of land though he remained in possession of 12. 50 acres of land and only 3 acres of the land out of 15. 50 acres remained in possession of Sunderlal. It was further found that defendant No. 4 Gilkiya Bai became owner of 10 acres of land after the death of her husband Sunderlal. It was further found that Sunderlal had not gifted 2 acres of land to Raisa, his sister's son. It was further found that the sale-deed dated 25-6-64 executed by Gilkiya Bai in favour of the present plaintiffs regarding sale of 8 acres of land was not bogus and sale-deed was invalid to the extent of 7 acres of land. Thus, the present plaintiffs title was found vide sale-deed dated 25-6-64. It was further found that effort was made to disturb the possession of Mishrilal by the present plaintiffs and Gilkiya Bai over 12. 50 acres of the suit land. Mishrilal had executed a will in favour of Shaligram dated 4-8-66. In the previous civil suit decree was passed to the following effect;