KANJI Vs. PARMANAND

JUDGEMENT

(1.) This Second Appeal by transferees and contesting Defendants who were unsuccessful in the Courts below was by order dated 24 -7 -81 admitted for final hearing on the substantial question of law set out below:

(2.) Defendant Nos. 1 and 2 Mst. Gomtibai and Mahadeo admitted the allegations made by the Plaintiffs in their common written statement filed on 7 -11 -1975. Defendant Nos. 3 and 4 in common written statement as subsequently amended resisted she claim and took us several pleas. At one stage it was even denied that the Plaintiffs Nos. 2 and 3 Dhankunwarbai and Punibai are sisters of Plaintiff No. 1 and daughter of Shankar Lal though later in his evidence Defendant Kanji denied this statement made in the written statement. It was submitted that another Civil Suit No. 10 -A/74 had been presented in the Court of 3rd Addl. District Judge, Dhar in respect of suit lands by Plaintiff No. 1 Paramanand and Defendant Nos. 1 and 2 Mst. Gomtibai and Mahadeo and in that suit the present Plaintiff Nos. 2 and 3 were not impleaded as parties. The present suit, therefore, was barred under Order 2, R. 2 Code of Civil Procedure and the Plaintiffs are bound by the principle of estopped. It was also submitted that till Civil Suit No. 10 -A/74 praying for cancellation of sale -deeds executed in favour of Defendant Nos. 3 and 4 was decided, the present suit was not maintainable and could not proceed. Valuation of the suit and jurisdiction of the Court were also denied. In special pleadings it was also submitted that Plaintiffs and Defendant Nos. 1 and 2 constituted a joint Hindu Family and widow Mst Gomtibai Defendant No. 2 as Manager of the family had sold all the lands for getting Defendant No. 1 Mahadeo treated and Plaintiff No. 4 Chunnibai married. The sale -deeds of all the lands in favour of Defendant Nos. 3 and 4 were executed by Defendant No 1 and 2 with the consent of the Plaintiff are, therefore, estopped from challenging the title of these Defendants over the suit -lands. It was also pleaded that Defendant Nos. 1 and 2 were ostensible owners of the agricultural lands with the consent of Plaintiffs and had earlier mortgaged the lands and therefore, sale -deeds executed by tham in favour of the Defendant Nos. 3 and 4 were binding on the Plaintiffs. The Plaintiffs have to title over the suit -lands nor to they deserve any share in them. They are also not entitled to any mesne profits.

(3.) BEYAS Singh and Ors. v. Ramjanam Ahir and Ors.; ( : AIR 1961 Pat. 16) ...also relied on by Shri Singh.