MANGU KHA Vs. MOINUDDIN

JUDGEMENT

(1.) This Second Appeal has been filed against the judgment and decree dated 15.12.2007 passed by the 1st Civil Judge, Class-I, Dhar and Judgment and decree dated 21.12.2010 passed by 1st Addl. District Judge, Dhar whereby the civil suit, as well as the First Appeal, have been dismissed.

(2.) Being aggrieved by the aforesaid judgment and decree the plaintiff : Mangu Kha preferred the First Appeal mainly on the ground that the entire area of the suit land is 4 hectares and in which the share of the Moinuddin was only 1.965 hectare and out of which he had already sold part of the land by sale deeds Exb. P23 and P-24 therefore, the remaining land is less than 5 acres cannot be sold into auction in view of Section 165 of M.P. Land Revenue Code,1959. He has assailed the judgment and decree on the ground that the defendant filed a counterclaim for possession on 13.07.2005 whereas the written statement had already been filed on 20.12.2004 hence the counterclaim was not maintainable being time-barred. The defendant Ratanlal purchased the property during pendency of the suit/appeal between Mangu Kha and Moinuddin therefore, such transaction is hit by Section 52 of Transfer of Property Act,1882. He has also assailed the Judgment and decree on the ground that auction had been done on a much lower price i.e. Rs.35,000/- against the market value of Rs.3,00,000/-. The sixth and last ground raised by the appellant was that in view of the judgment and decree dated 10.01.2003 passed in Civil Suit No.60-A/2000 and appeal No.8-A/2002 the share of the plaintiff is 7/16th in each survey number therefore, the share of Moinuddin could be ascertained only after the partition of the entire suit land and thereafter, the decree against the Moinuddin ought to have been executed. The learned Addl. District Judge, has turned down all the aforesaid objections and vide judgment and decree dated 21.10.2010 has dismissed the appeal hence, the second appeal before this Court.

(3.) Vide order dated 23.02.2012 this Court has admitted the appeal on following two substantial questions of law:-