SEVANTIBAI AND OTHERS Vs. BABUSINGH AND ANOTHER

JUDGEMENT

(1.) This Miscellaneous Appeal is directed against the order passed by learned Additional District Judge, Manawar, District-Dhar in civil suit appeal No.4-A/13 whereby learned Additional Sessions Judge set-aside the judgement and decree passed by learned Civil Judge Class-II, Manawar, District-Dhar in civil suit No.2-A/11 dated 22.12.2012 and remanded the matter back to the trial court for retrial.

(2.) The admitted facts are that deceased-Amar Singh who is husband of appellant No.1 Sevantibai and father of appellants No.2 to 6 and brother-in-law of respondent No.1 Babusingh. Amar Singh died in the year 1997. It is also admitted that suit property bearing survey No.238 area measuring 1.99 hectare situated at village Kawathi is recorded in the name of deceased-Amar Singh. Earlier the suit property belonged to one Rupabai wife of Umrao Singh. Respondent No.1 Babusingh filed a suit for declaration and permanent injunction against the appellants averting therein that the deceased-Amar Singh being closely related to him wanted to purchase the suit property from Rupabai but he was not having necessary resources and amount for payment of price of the land. Accordingly, he requested respondent-Babusingh to make payment on his behalf to Rupabai and it was agreed between them that the whole amount would be refunded back to him within two years and if he failed to return the amount, respondent-Babusingh would become absolute owner of the land. Under these conditions, a sale deed was executed on 11.01.1988. After execution of sale deed, an agreement was also executed on 23.02.1988 in which it was mentioned that respondent-Babusingh came in possession of the land immediately after execution of sale deed on 11.01.1988 and he was cultivating the land.

(3.) Subsequently, deceased-Amar Singh could not refund the amount within the stipulated period of two years, and therefore, after his death in the year 1997, a suit was filed for declaration and permanent injunction, in which, the ownership of the land was claimed on the basis of adverse possession also. The appellants filed a written statement stating therein that the facts stated by the respondent-Babusingh were all incorrect. After death of deceased-Amar Singh in year 1997 being the widow, she gave the land on ardhbatai to respondent-Babusingh, who took the original sale deed being closely related to deceased-Amar Singh. Appellant No.1 gave him original papers in good faith. Respondent No.1 stopped paying profit from the year 2004, and therefore, they also filed a counter claim in that suit. Learned trial court gave a finding and did not found the facts stated by respondent as proved. However, counter claim was allowed and the trial court gave a finding that the land was given on ardhbatai by the appellant to respondent No.1.