GOWARDHAN Vs. GHASIRAM

JUDGEMENT

(1.) The appellant/defendant No. 1 Gowardhan has filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by the District Judge, Ujjain in Civil Appeal No. 5-A/74 on 11-12-1978 confirming the decree granted by the trial Court decreeing the suit of the Respondent/plaintiff Ghasiram and others vide judgment and decree dated 23-2-1974 passed by Second Civil Judge, Class-I, Ujjain in Civil Suit No.21-A/71.

(2.) This second appeal was admitted for final hearing on the following substantial questions of law :-

(3.) In order to appreciate the controversy between the parties, the following facts, in brief, are not in dispute that the suit land originally belonged to Lachhibai and Pannibai. The defendant No. 5 Rughnathsingh was legal representative of deceased Pannibai. Lachhibai and Pannibai instituted a case under Section 326 of Kanoon Mal Gwalior for recovery of possession of those lands from one Daula on the allegations that the said Daula had taken forcible possession of the suit lands. During the pendency of said case, Lachhibai and Pannibai sought an interim possession under Section 328 of Kanoon Mal Gwalior from Daula on 20-4-1949 in pursuance of the order of Revenue Court dated 31-5-1948. Against that order Daula had filed a revision and had died during the pendency of the said revision. Gowardhan, appellant/defendant No. 1 as legal representative of said Daula prosecuted the said revision but ultimately that revision was dismissed. The main case under Section 326 of Kanoon Mal Gwalior instituted by Lachhibai and Pannibai was dismissed in default on 7-7-1953 but Lachhibai and Pannibai continued to remain in possession of the lands in suit as they had obtained interim possession during the pendency of that case. Thereafter on 14-4-1954 appellant Gowardhan instituted proceedings for restitution and on 17-8-1966 the Collector directed the restitution of possession in favour of Gowardhan and on 19-1-1967 appellant Gowardhan obtained possession of land in suit.