KHANDERAO Vs. GANPATRAO

JUDGEMENT

(1.) MATERIAL facts giving rise to this appeal are a as follows.

(2.) THE Defendants denied Plaintiffs allegation regarding leasing of land to Kalidin in the Samvat Years 1979, 1980 and 1983. According to them in the settlement that took place in Samvat Year 1979 their name had been recorded as Pukhta Morusi. According to them this land had been sold by the father of the Plaintiffs in Samvat Year 1979 (1922 A. D.) and in pursuance of this transaction of sale their names had been recorded. They denied the fact of payment of rent by Kalidin subsequent to 1979 or any promise to pay the same by Ramautar. They pleaded bar of limitation and challenged the jurisdiction of the Civil Court to entertain the suit having regard to the terms of Judicial and Legislative Circular No. 19/1979 of the erstwhile Gwalior State which was in force at the time of the institution of the suit in the year 1946 (4 -4 -1946).

(3.) IN the second appeal at an earlier stage of the case the Defendants pressed the ground that a claim as against a Ryotwari sub -lessee was involved in this case and that under Section 4 of the Madhya Bharat Ryotwari Sub -lessees Protection Act of 1955, the case had to be stayed. This was upheld since the Plaintiffs had alleged that the Defendants were the sub -lessees who had fraudulently got their names mutated after the death of the Plaintiff's father and behind the back of the Plaintiffs. The denial of the initial relationship by the Defendants and assertion of their being in possession pursuant to an agreement of sale did not mean that a question of ejectment of a Ryotwari Sub -lessee was not involved. After passing of the Madhya Pradesh Land Revenue Code which repealed the Madhya Bharat Ryotwari Sub -lessees Protection Act No. 29 of 1955, the second appeal came for hearing as the bar created by Section 4 of the latter Act had been removed. The appeal was heard by Krishnan J., Before him the Defendants pressed their claim under Section 185(1)(6) of the Code on the basis of their initial status as Sub -lessees of a Ryotwari tenant. The learned Judge found that after the decree of the first appellate Court on 12 -31 -951 the Defendants had been passed in Plaintiffs' favour. This was some time in 1951. They had not secured restitution till the coming into force of the Code. They, therefore, according to the learned Judge, could not be persons who had held land as a Ryotwari sub -lessee at the coming into force of the Code and were consequently not entitled to the benefit of that provision. On other questions regarding the right claimed by the Defendants on the basis of alleged conditional sale and limitation, the learned Judge in second appeal agreed with the conclusions of the Courts below. The appeal was accordingly dismissed. However the learned Judge granted leave.