AMAR SINGH Vs. BALMUKUND

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 12/03/ 88 passed by Additional District Judge, Rajgarh (Biaora) in Civil Appeal No. 12- A/81 whereby the judgment and decree dated 31/03/78 passed by Civil Judge, Class-II, Khilchipur in Civil Suit No.71-A/75 whereby the suit filed by deceased Raghunath Gupta predecessor in title of respondents was dismissed, was set aside and a decree was passed against the appellants, the present appeal has been filed.

(2.) The appeal was admitted for final hearing by this Court vide order dated 27/06/88 on the following substantial questions of law:-

(3.) Short facts of the case are that the deceased Raghunath Gupta predecessor in title of respondents filed a suit for possession against Bapulal, Hiralal and Banshilal (all sons of Shankar) who are the predecessor in title of appellants on 25/10/72 for possession. In the suit filed by deceased Raghunath Gupta it was alleged that the land bearing survey No.999/1 measuring 0.60 hectare situated at village Jirapur Tehsil Khilchipur is owned by him as he purchased the suit property from Fatehsingh Thakur vide registered sale deed dated 23/09/67. It was alleged that Fatehsingh was the Bhumi-swami of the suit land. Further case of deceased Raghunath Gupta was that Shankar predecessor in title of the appellants initiated proceedings before the Revenue Court and claimed for mutation alleging themselves to be Shikmi of Fatehsingh. It was alleged that the said application was dismissed by SDO vide order dated 06/12/69 and the appeal filed against the said order was also dismissed. It was alleged that Shankar who initiated the proceedings died in the year 1975. It was alleged that Bapulal Hiralal and Banshilal who are legal representatives of deceased Shankar had no right to retain the possession over the suit property. It was alleged that after acquiring the rights over the suit property by sale deed dated 23/09/67 deceased. Raghunath Gupta issued notices on 29/01/74 and asked for possession, but the notice was not replied, hence the suit was filed wherein it was prayed that it be directed that possession be handed over to the deceased Raghunath Gupta and mesne profit be awarded @ Rs.400/- per year.