SUKHIRAM Vs. TARACHAND

JUDGEMENT

(1.) THIS appeal under Clause 10 of of the Letters Patent arises out of the reversing decree of the learned Single Judge, who restored the first Court's decree for possession of khasra no. 271/2 situate in patti No. 1 of village Akalsara in Bilaspur district in favour of the plaintiff.

(2.) THE plaintiff's case, briefly stated, was as follows. While the plaintiff was the lambardar of patti No. 2 of village Akalsara, the defendants, who we members of a Hindu joint family, were co -sharers of patti No. 1 of that village. One Chindhu Banjara, who held khasra No. 2230 in patti No. 2, sold it, by means of an unregistered deed executed early in 1943, to the defendant 2 without giving any notice. The plaintiff learnt about that sale and made an application under Section 12 -A of the Central Provinces Tenancy Act, 1920 (I of 1920) for pre -emption. The defendants, who were duly noticed, did not contest those proceedings. Eventually, by an order dated 3 November 1943, the Revenue Court accepted the plaintiff's application, required him to deposit Rs. 170/ -, executed a registered sale deed in his favour in respect of the plot khasra No. 2230 and placed him in possession of that plot. In the year 1943, proceedings for consolidation of holdings in the village under the provisions of the Central Provinces Consolidation of Holdings Act, 1928 (VIII of 1928) were in progress. The defendant 2 suppressed the fact that the pre -emption proceedings were pending in respect of the plot khasra No. 2230 and secured from the Consolidation Authorities an order for recording the disputed khasra No. 281/2, which was obtained in exchange for khasra No. 2230, in the name of all the defendants. In the altered situation, when the plaintiff found that he ceased to be entitled to khasra No. 2230 which had been allotted to one Atbal Gond, he moved the Superintendent of Land Records, Bilaspur, who, by an order dated 21 November 1944, ordered that the name of the plaintiff be recorded as a tenant of khasra No. 271/2 in dispute. The plaintiff averred that in June 1945, he cultivated khasra No. 271/2 but that, in November of the same year, he was forcibly dispossessed by the defendants.

(3.) THE Court of first instance repelled the defence and passed a decree for possession in favour of the plaintiff. The learned Judge of the first appeal Court (Shri H. C. Daga ) reversed the decree and dismissed the suit. In Second Appeal No. 633 of 1947, Sinha C. J. (as he then was) held, that the entire basis of the decision of the first appeal Court was misconceived and remanded the case for a fresh decision in accordance with law. Thereupon, deciding the case afresh, the first appeal Court (Shri M. V. Gokhale) held that the unregistered sale deed in favour of the defendant 2 did not convey any tittle to him and the invalid sale thereby made could not be pre -empted. This was the more so because, by 3 November 1943, the plot purported to be sold, namely khasra No. 2230, had already been allotted to Atbal Gond. It was further held that the order of the Superintendent of Land Records directing that the name of the plaintiff be recorded as a tenant of khasra No. 271/2 was invalid because it was passed without any notice to be defendants and without any enquiry. Finally, the plaintiff was out of possession for more than three years next before the suit and his claim was barred by time.