VISHAMDEVI AND ORS. Vs. RAJENDRA DAYAL AND ORS.

JUDGEMENT

(1.) THIS appeal by plaintiffs is directed against the judgment and decree dated 27/3/2004 in civil appeal No. 71A/2003 setting aside the judgment and decree dated 18/9/2000 in civil suit No. 215A/1996. Consequently, suit for declaration, permanent injunction, possession and mesne profit was dismissed.

(2.) FACTS relevant for disposal of this appeal and as pleaded in the plaint are to the effect that plaintiffs filed the instant suit for the relief hereinbefore mentioned in relation to the agricultural land admeasuring 0.491 hectare falling in survey No. 1002 and 0.805 hectare falling in survey No. 1004 of Tahsil and District Guna. It is pleaded that the suit land was of the ownership of one Dr. Laxmandev Malhotra, which was purchased by him vide sale deed dated 17/1/1960 executed by one Champalal son of Gotu Lal. Thereafter, the said Dr. Malhotra on 27/5/1974 had donated his land by way of registered gift -deed in favour of Kundanbai and accordingly, name of Kundanbai was recorded in the revenue records. Kundanbai in turn vide sale deed dated 3/12/1985 had transferred the suit land in favour of appellants and accordingly, possession was delivered and since then plaintiffs/appellants are in possession thereof with ownership right over the suit land. However, sometimes in November, 1979 defendant No. 1 had encroached upon and taken unauthorized possession of an area of 31 ft east -west and 45 ft. north -south of the suit land; the same is marked as Aa, Ba, Sa, Da, in the map attached with the suit, prior to the aforesaid sale deed in favour of plaintiffs. Kundanbai had given notice to defendant No. 1 to return back the possession. Since defendant No. 1 did not hand over the possession, therefore, suit was filed by Kundanbai on 16/5/1980. During pendency of the suit defendant No. 1 had transferred the suit land to defendant No. 2 on 17/10/1986 and accordingly, defendant No. 2 was made a party to the suit at a later stage with amendment in the prayer for declaration that the sale deed dated 17/10/1986 be declared as null and void.

(3.) THE trial court after proceeding ex parte against defendants No. 1 and 2, by judgment and decree dated 18/9/2000 had dismissed the suit.