BHAGWANTABAI Vs. ABDUL GAFFAR

JUDGEMENT

(1.) BEING aggrieved by the judgment-decree dated 14-9-88 passed by the District Judge, Balaghat in C. A. No. 12-A/86 affirming the judgment-decree dated 5-8-86 passed by the Civil Judge Class-I, Balaghat in C. S. No. 75-A/79 plaintiff/appellants have preferred this appeal under Section 100, CPC.

(2.) THE appeal has been heard on the following substantial questions of law: (a) Whether plaintiffs could sue for possession without claiming relief of cancellation of sale (Ex. D-2) ? (b) Whether on finding that suit lands were ancestral properly and in absence of finding that sale (Ex. D-2) was supported by legal necessity, the plaintiffs could be non-suited ?

(3.) LATE Mooka was recorded owner of suit land Khasra No. 128 area 0. 21, khasra No. 143 area 0. 79 acres Village Hirri, Tehsil and Distt. Balaghat. Late Mooka was survived by 2 sons late Dadu and late Kashiram. Late Dadu was survived by sons Gendalal and Kalicharan. The suit lands remained recorded jointly in the names of Gendalal, Kalicharan and Kashiram. Defendant/respondent Janmejay is son of Kashiram. Plaintiff/appellants are wife, sons and daughters of Janmejay. Since Gendalal, Kalicharan have sold their shares of ancestral lands inherited from late Mooka, to avoid any dispute in future, Gendalal, Kalicharan and Kashiram jointly executed registered sale deed dated 5-4-73 (Ex. D-1) in favour of defendant/respondent Janmejay. This sale deed (Ex. D-1) was nominal. The suit lands said to have been purchased vide registered sale deed (Ex. D-1) remained ancestral in the hands of defendant/respondent Janmejay. Defendant/respondent Janmejay being a man of infeeble mind did not cultivate and plaintiff/appellants remained in possession of suit lands. Defendant/respondent Abdul Gaffar on 25-10-77 forcibly harvested the crop sown by plaintiff/appellants. Therefore, plaintiff/appellants instituted C. S. No. 75-A/79 before the Civil Judge seeking relief of injunction and recovery of mesne profit. In C. S. No. 75-A/79 on an application under Order 39 Rules 1 and 2, CPC issuing injunction, the Civil Judge directed defendant/respondent Abdul Gaffar not to dispossess the plaintiff/appellants from the suit lands. However, on 15-6-78 defendant/respondent Abdul Gaffar by sowing forcibly, dispossessed plaintiff/appellants from the suit lands. Accordingly, amending the plaint relief of possession also has been claimed. The suit aforesaid was resisted by defendant/respondent Abdul Gaffar stating inter alia that the suit lands in the hands of defendant/respondent Janmejay were not ancestral. The suit lands were purchased by him vide registered sale deed dated 5-4-73 (Ex. D-1 ). Defendant/ respondent Janmejay having received full amount of consideration executed a registered sale deed dated 24-5-77 (Ex. D-2 ). Since then he became owner in possession of suit lands. The Civil Judge in C. S. No. 75-A/79 vide judgment dated 5-8-86 held that on the basis of registered sale deed (Ex. D-1) the suit lands were purchased by defendant/respondent Janmejay. Further by executing registered sale deed (Ex. D-2) the suit lands were sold to defendant/respondent Abdul Gaffar. Accordingly, the suit seeking possession, injunction and recovery of mesne profit has been dismissed. Being aggrieved, plaintiff/appellants preferred C. A. No. 12-A/86 before the District Judge, Balaghat. The Court below vide impugned judgment dated 14-9-88 held that the suit lands in fact were inherited by late Dadu and late Kashiram from their father late Mooka. Late Dadu was survived by Gendalal and Kalicharan. Lands of Khata of late Mooka remained jointly recorded in the names of late Dadu, Kashiram. On the death of Dadu, his sons Gendalal, Kalicharan and late Kashiram remained recorded owners of suit lands. Since late Dadu and his sons Gendalal, Kalicharan have sold parts of lands equal to their 1/2 share, to avoid any dispute in future, Gendalal, Kalicharan and late Kashiram jointly executed a registered sale deed dated 5-4-73 (Ex. D-1) in the name of defendant/respondent Janmejay son of Kashiram. Thereafter late Kashiram died. The sale deed dated 5-4-73 (Ex. D-1) was nominal without consideration, as such the Court below held that the suit lands in the hands of defendant/respondent Janmejay were ancestral. Defendant/respondent Janmejay personally was not in possession and plaintiff/appellants being in possession cultivated the suit lands. Defendant/respondent Abdul Gaffar in the month of October, 1977 forcibly harvested the crop said to have been sown by plaintiff/appellants. Thereafter in the month of June, 1978 dispossessed them from the suit lands. In the circumstances, the Court below ought to have decreed the suit for possession, injunction and recovery of mesne profit. Since plaintiff/appellants did not claim cancellation of sale deed dated 24-5-77 (Ex. D-2) said to have been executed by defendant/respondent Janmejay in favour of defendant/respondent Abdul Gaffar, dismissed the appeal. Being aggrieved, the plaintiff/appellants have preferred this appeal under Section 100, CPC.