BANKAT LAL Vs. MATHURALAL

JUDGEMENT

(1.) THIS is a plaintiffs second appeal against concurrent findings of the two Courts below dismissing the suit of the plaintiff for declaration of title, possession and mesne profits claimed at the rate of Rs. 1,000/ - per year, in respect of the land situated at Survey Nos. 278 and 279 (new survey No. 216), area 16 'Bigha' 12 'Biswa', in village Amkheda, Tahsil Chachoda, District Guna.

(2.) THE appeal was admitted on 12 -7 -1991 for hearing on the following substantial questions of law : - -

(3.) THE trial Court dismissed the suit, holding that the land was not given on lease; but it was a transaction of mortgage in the shape of formal Tatta'; in view of the compromise arrived by the parties in proceedings under Section 319, Qanoon Mal, the plaintiff was required to hand over the possession, but as the plaintiff did not hand over the possession, the order of restoration of possession was rightly passed; the plaintiff never went to the land; he was a money lender and was getting a share of the crop in lieu of ban. As the plaintiff was not cultivating the land personally as defined in Section 54(xvii) of the Act, and the Patta was merely a security for securing amount of the debt, the plaintiff did not acquire any right of a 'Pakka' tenant under Section 54(vii). Moreover, after the enforcement of the Zamindari Abolition Act, the plaintiff as tenant did not apply under Section 38 for conferral of 'Pacca' tenancy right; Ramkishan and Kishorilal died before the Zamindari Abolition Act came into force; defendant No. 1 Mathuralal being minor and defendant No. 2 Jugatibai being the widow of Rajaram, were 'disabled' persons; therefore, for this disability also, the plaintiff did not acquire any 'Pakka' tenancy rights; the defendants being in possession in pursuance of the order passed under Section 91 of the Act, cannot be said to be holding the land illegally. Before parting with the case, in para 33 of the judgment the trial Court observed that the plaintiff has given false evidence and has used a forged document, i.e., Ext. P/l, by interpolation and fabricating the entries therein and, therefore, ordered to prosecute the appellant under Sections 467 and 471, Indian Penal Code, and for that a separate proceeding was ordered to be initiated under Section 479A, Criminal Procedure Code. In appeal, the decree was confirmed. Hence, this second appeal.