HARIPRASAD Vs. DHANNU SHYAMLAL

JUDGEMENT

(1.) THIS second appeal under Section 100 of the Code of Civil Procedure arises out of judgment and decree dated 28-6-2003 passed by learned Additional district Judge, Kannod, District Dewas in Regular Civil Appeal No. 22-A/2000. By the judgment impugned, judgment and decree vide dated 22-3-2000 passed by the learned Civil judge, Class-I. Kannod in Civil Suit No. 144-A/95 has been confirmed whereby declaration in favour of the plaintiffs (respondent No. 1 through L. Rs. and respondent Nos. 2 and 3) has been made that they are the bhumiswami of the disputed land; order of the Sub Divisional Officer under section 170-B of the M. P. Land Revenue Code, 1959 ("code" hereafter) is in operative and the other side has been restrained from making an interference in the possession of the plaintiffs/respondents.

(2.) IT has been concurrently found by Courts below that the aboriginal tribe Bhumiswami Ramprasad sold his disputed land on 1-6-1958 to one Dhanya and also delivered to him its possession and executed registered sale-deed latter on 22-4-1965. Then Dhanya sold it to Dhannu (deceased plaintiff No. 1) and gave him possession and executed its registered sale-deed on 7-5-1977. Sub divisional Officer (Revenue) declared that the sale by Ramprasad to Dhanya was contrary to the provisions of Section 165 (6) and under Section 170-B of the code. The disputed land was liable to reversion to legal representative of ramprasad (defendant No. 1 Hariprasad ). Kachru (defendant No. 2) is son of late Dhanya. Hence, in the circumstances the suit for declaration and injunction against the above defendants and State was filed and in the alternative refund of consideration was claimed.

(3.) THE defence of the contesting defendants before the learned Trial court was that Ramprasad never executed the sale- deed of the suit land. He only had intended a mortgage. It was also pleaded that the jurisdiction of the civil Courts was barred to consider the issue of application of Sections 165 and 170 of the Code.