VIJAY SINGH GHORPODE Vs. LAXMAN RAO LAD.

JUDGEMENT

(1.) The appellant has preferred this Second Civil Appeal against the judgment and decree passed by the District Judge, Gwalior on 17/1/1974, in Civil Appeal No. 7 -A of 1969.

(2.) THE plaintiff -appellant filed a suit against the defendant -respondent for possession, perpetual injunction and mesne profits, on 2 -11 -1963 in the Court of First Civil Judge, Class I, Gwalior. According to the facts enumerated in the plaint, plaintiff's father, Shanker Rao Mohite, died on 26/1/1956, leaving the plaintiff as his heir. Agricultural lands Survey Nos. 13, 122, 123, 124,125,126,127, 128, 129, 130, 131, 132, 133, 134, 147, 148, 149, 150, 151, 152, 153, 154, 161, 166 and 167, total area 22 Bighas of village Jaganpura belonged to his father and after his death, the plaintiff became the owner. Before coming into force of Madhya Bharat Land Revenue and Tenancy Act and Madhya Bharat Zamindari Abolition Act, his rights were governed by the provision of Kanoon Mal of the erstwhile State of Gwalior. The suit lands have been in possession of the defendant since Samvat 2007 (l950 -51) or Samvat 2008 (1951 -52). In the year 1953 -54, the defendant knocked the door of Tahsil Court for conferring upon him the pacca tenancy rights on the ground that he was the Subtenant of Shankarrao Mohite and the litigation in Revenue Court continued. Plaintiff further averred in the plaint that the suit lands were cultivated by some persons on behalf of his father, but the yields were poor, hence in Samvat 2008, the fields were entrusted to the defendant on assurance of better yield. thenceforth, the defendant started cultivation of the suit lands, as the agent of his father and subsequently, the defendant filed the aforesaid application for recording him as a pacca tenant under section 38 of M. B. Zamindari Abolition Act (hereinafter referred to as the Abolition Act). Since then defendant started his claims adverse to the interest of the true owner. Plaintiff further proceeds to say that on the death of Shankarrao Mohite, the agency came to an end and defendant's possession since then became unlawful. Hence the plaintiff claimed, in the suit, possession upon the suit lands with mesne profits for the last three years and also prayed for perpetual injunction restraining the defendant from interfering with his possession.

(3.) THE trial Court in its judgment concluded that the defendant was not proved to be an agent or a sub tenant of the plaintiff's father and agreement Ex. D -1 was not proved. But according to the trial Court the defendant's possession was as a trespasser for more than 12 years preceding the date of the institution of the suit. Hence the trial Court dismissed the suit as barred by limitation, without assessing the mesne profits.