LAXMINARAYAN Vs. MANSINGH

JUDGEMENT

(1.) THE present Second Appeal has been filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 26.9.2007 passed by the 1st Additional District Judge, Shajapur in Civil Regular Appeal No.39-A/2005. The first appellate Court has affirmed the judgment and decree dated 31st August, 2005 passed by the Civil Judge Class-I, Shajapur District Shajapur in Civil Suit No.56- A/2001.

(2.) THE facts of the case reveal that one Mansingh, the present respondent No.1 was dispossessed by the present appellant on 6th July, 1998 from the land bearing Survey No.570, Area 0.59 'Are', Survey No.202, Area 0.15 'Are', Survey No.606, Area 0.18 'Are', Survey No.846, Area 0.04 'Are' and Survey No.1364, Area 0.11 'Are'. The respondent No.1-plaintiff as he was dispossessed from the suit property filed a civil suit and pleaded that he has been dispossessed from his ancestral property, which is duly recorded in the revenue record in his name and prior to him, his father's name was recorded as Bhumiswami. The plaintiff filed a suit for declaration of title as well as claiming possession. A counter claim was preferred by the present appellant/defendant and it was stated in the counter claim that in the year 1954, the father of the plaintiff and the father of the defendant by virtue of an exchange deed transferred the property in favour of the defendant/appellant and since then the defendant is in possession of the suit property. The so called exchange deed was also brought on record and marked as Ex.D/2. The trial Court after taking into account the statement of witnesses and the exchange deed has arrived at a conclusion that the exchange deed which was not a properly stamped document was in fact a forged and fabricated document and after holding that the exchange deed was a forged and fabricated document, the suit filed by the plaintiff was decreed. The counter claim preferred by the defendant was dismissed. Learned counsel arguing the matter on behalf of the

(3.) BEHALF of the plaintiff has vehemently argued before this Court that the present appellant was claiming to be in possession of the property by virtue of exchange deed (Ex.D/2) and also by taking shelter of Section 53-A of Transfer of Property Act. He has also brought to the notice of this Court the averments made in the counter claim and his contention is that the defendant also took shelter of the plea of adverse possession. His contention is that the plea of adverse possession and the plea of exchange deed are contradictory pleas and, therefore, the plea of adverse possession was rightly ignored by the trial Court. His contention is that no title accrued in favour of the defendant as rightly held by the trial Court on account of forge and frivolous document i.e. exchange deed (Ex.D/2). He has prayed for dismissal of the present appeal. The Apex Court in the case of Gurudev Kumar and