DARYAO SINGH Vs. HALKIBAI

JUDGEMENT

(1.) This judgment will also govern the disposal of First Appeal No. 121 of 1971 (Daryao Singh v. Smt. Halkibai and others. These appeals brought from a common judgment of Shri R. L. Sanghani, IIIrd Addl. District Judge, Bhopal, dated 2nd September 1971, raise a common question and, therefore, they are disposed of by a common judgment

(2.) The relevant facts, in brief, are as follows: The field Khasra No, 77/6/2, area 29.54 acres, situate in village Kondari, belonged to Major Wall Mohammad, By an agreement dated 14-6-1954, Ex. P-19, he agreed to sell the field to Barelal for Rs. 3692.50 p. pursuant to the agreement, he received Rs. 1,000 by way of earnest money. On 2-8-1954 Barelal paid him Rs. 700, vide receipt, Ex. P-20. Barelal paid Rs. 1,848 in all but could not arrange for the balance and evidently abandoned the contract in favour of Ganesh Singh, his brother-in-law, i.e., wife's brother. The balance consideration of Rs. 1844.50 was, accordingly, paid by Ganesh Singh, Wali Mohammed executed a sale-deed on 22-6-1955, Ex. P21, of the said field in favour of Sunder Singh minor son of Ganesh Singh and Mst. Mathura Bai, his widowed sister and their names were duly mutated as the khatedars of the same. On 28-5-1965, Sunder Singh and Mst. Mathura Bai entered into an agreement, Ex. D-2, to sell the land to Barelal and Ramratan for a consideration of Rs. 24,000. They received Rs. 18,000 under the agreement and placed the purchasers in possession. Incidentally, Barelal is the father-in-law of Sunder Singh, and Ramratan, the brother-in-law of Ganesh Singh. This led a dispute relating to possession between Daryao Singh on the one hand (party No. I) and Ramratan on the other (party No. II), and there was an imminent apprehension of breach of peace, and on the report of the Station House Officer, Bari, proceedings under Section 145 of the Code of Criminal Procedure were started. On 6-10-1965, the Sub-Divisional Magistrate, Bareli, passed a preliminary order under Section 145 (4) of the Code, requiring the parties to file their statements in respect of their respective claims, and placed the disputed land under attachment on 27-10-1965. The party No. I, Daryao Singh, claimed to be in possession of the disputed land in pursuance of an earlier agreement dated 6-8-1964, Ex. P-5, entered into with Ganesh Singh, acting as guardian of his minor son Sunder Singh, and Mst. Mathura Bai, under the terms of which Ganesh Singh had agreed to sell the land to him for a consideration of Rs. 21,000, and alleged that he had paid Rs. 10,750 towards part-payment of the price. On the other hand, the Party No. II, Ramratan, claimed to be in possession along with Barelal, by virtue of the aforesaid agreement dated 28-5-1965, Ex. D-2, entered into with Sunder Singh and Mst. Mathura Bai, on their paying Rs. 18,000.

(3.) On 15-11-1965, i.e, after passing of the aforeasid preliminary order, Sunder Singh and Mst. Mathura Bai executed the sale-deed, Ex. D-3, in favour of Barelal and Ramratan, on receipt of the balance consideration of Rs. 6,000. On 17-11-1965, Barelal and Ramratan instituted Civil Suit No. 12-A of 1965 for declaration of their title too, and for grant of perpetual injunction in respect of Khasra No. 77/6/2, on the strength of their sale-deed, Ex. D-3, against Daryao Singh, his brothers Sethji and Dadu Bhaiya, and sons Hanumat Singh and Himmat Singh, who, in their written statement filed on 1-2-1966 alleged that Sunder Singh and Met. Mathura Bai were not the real purchasers, under the sale-deed dated 22-6-1955, Ex. P-21, executed by Major Wali Mohammad, but were benamidars for Daryao Singh. During the pendency of this suit, the Sub- Divisional Magistrate passed a final order dated 19-4-1966, declaring Ramratan (Party No. II) to be in possession of the disputed land on the date of the preliminary order .and two months next before the date of such order. The final order of the Sub-Divisional Magistrate, Bareli was eventually upheld by the High Court in Criminal Revn. No. 298 of 1965 Daryao Singh v. Ramratan on 18-81966. Thereafter, on 10-10-1966 Daryao Singh and his two minor sons Sher Singh and Achhe Bhaiya alias Daulat Singh brought Civil Suit No. 10-A of 1968, for specific performance of the agreement dated 1-10-1964, Ex. P-5, against Ganesh Singh. They subsequently amended the plaint and sought a declaration that the sale-deed dated 22-6-1955, Ex. P-21, executed by Major Wali Mohammad in favour of Sunder Singh and Mst. Mathura Bai was a benami one for Ganesih Singh. The points involved in both the suits were common and the evidence was also common, and, therefore, the parties requested that the suits be tried together; and, consequently the evidence was recorded in Civil Suit No. 10-A of 1968. and the documents which were on the file of Civil Suit No. 12-A of 1965, were brought on the record of that suit.