GORDHAN SINGH Vs. ABDULJI ALAMJI

JUDGEMENT

(1.) THIS is the plaintiff's second appeal against the judgment and decree passed in Civil Appeal No. 10 -A/1988 dated 22.4.1989 reversing the judgment and decree passed by the trial Court in Civil Suit No. 38 -A/1987 dated on 26.8.1988. The appeal was admitted for hearing vide order dated .7.8.1989 on the following substantial questions of law:

(2.) THE plaintiff filed a suit for eviction against the defendant respondent for delivery of possession of the land bearing S.No. 418/2 total area 0.218 acre situated at village Bandhikedi, Tahsil Mandsaur. It was pleaded by the plaintiff that one Khumansingh S/o Himmatsingh executed an agreement dated 22.7.1964 for sale of the land 0.218 acre situated at S.No. 418/2. When he did not perform his part of the agreement, the plaintiff filed the suit against Khumansingh, which was registered as Civil Suit No. 37 -A/66 and decreed in favour of the plaintiff by judgment and decree dated 17.7.1970. On 24.11.1977, Himmatsingh, heir of Khumansingh, executed a sale deed in favour of plaintiff because Khumansingh had died. It is further pleaded that on 7.1.1978, the defendant illegally took possession of a plot of the aforesaid land measuring 84 ft. x 39 ft. and constructed a shop.

(3.) THE trial Court held that there was an agreement by Khumansingh to sell a land on 22.7.1964 in favour of the plaintiff and when he did not perform his part of the agreement, plaintiff filed a suit which was registered as Civil Suit No. 37 -A/1966 and the suit was decreed and in pursuance of the decree of the suit a sale deed was executed by the Court of the land in favour of the plaintiff. It has further been held by the Court, amongst the aforesaid land, Khumansingh sold a plot measuring 84 ft. x 39 ft. to one Abhay Kumar on 23.5.1966 by a registered sale deed for a consideration of Rs. 500/ - and also delivered possession to him. Thereafter the said Abhay Kumar again sold the land to the defendant on 3.10.1975 in a consideration of Rs. 3000/ -. The trial Court further held that the plaintiff is not barred by filing this suit on the basis of estoppel and also on the basis of the provisions of section 47 of the Civil Procedure Code because the plaintiff filed execution proceedings of a decree passed in earlier Civil Suit No. 37 -A/1966, which was withdrawn subsequently, and decreed the suit with regard to delivery of possession of the suit property, it has also been ordered that the defendant may remove the construction and give vacant possession to the plaintiff.