UDAISINGH GANPAT DANGI Vs. KALU DEVJI DANGI

JUDGEMENT

(1.) THIS is defendants' second appeal against the reversing judgment and decree passed by the 1st Additional District Judge, Dhar in Regular civil Appeal No. 39-A/79 decided on 11-8-1980. This appeal was admitted for final hearing on the following substantial questions of law:-

(2.) BRIEF facts which are relevant for the disposal of this appeal are as under.-Following facts are undisputed. Original plaintiffs and the defendants were close relatives. In fact, plaintiffs Kalu and Heera were the first cousin of original defendants, Mainabai and her sister Jadibai, who were the main contesting party to the litigation. They were daughters of Bhera and Radhibai. Bhera died in 1928. During his lifetime agriculture lands admeasuring 63. 4 bigha (suit land) was allotted to Bhera and his name was recorded as raiyat pattedar in the revenue records. After his death Radhibai succeeded to the suit land and her name too was recorded as female raiyat pattedar in the Revenue Records under the Dhar state Land Revenue and Tenancy Act (No. 1) of 1940-41 (for short 'the Act' ). Plaintiffs Kalu and Heera were the sons of Deva, real brother of Bhera. There were long drawn revenue proceedings between plaintiffs and defendants and ultimately, plaintiffs' who were in possession of suit land had to hand over possession to defendants in late seventies by virtue of orders of Revenue authorities hence they filed the suit for declaration, possession and mesne profits. The case of the plaintiffs, in nutshell, was that upon death of Radhibai, they being the male descendants had inherited the suit property and Jadibai who alone contested the suit had no share in the suit land. In the alternative, appellants claimed that after the death of Radhibai, they came into possession of the suit land and when they were declared Paccka Krishak by order dated 3-12-1956, from that point of time their open possession over the suit land became hostile possession and they acquired title by way of adverse possession. Defendants jadibai contested the suit and denied the plaint allegations. With these pleadings, parties went to trial and adduced evidence. Learned trial Judge dismissed the suit holding that the plaintiffs were not entitled to succeed to the suit land upon death of Radhibai. The trial Court also negatived the plea of adverse possession. Being dissatisfied with the judgment and decree passed by the trial Court, one of the plaintiffs, viz, Kalu preferred an appeal and the legal heirs of co-plaintiff Heera, who died during the pendency of the suit, were impleaded as respondents before the first Appellate Court. First Appellate Court after appreciating the evidence found in favour of the plaintiffs and thus decreed the suit for declaration and rnesne profit and also ordered delivery of possession which was obtained by jadibai by virtue of orders passed by the revenue authorities somewhere in the year 1970, prior to institution of the suit, hence, this appeal by one of the legal representatives of deceased Jadibai. Other legal representatives of deceased jadibai have been impleaded as respondents in this appeal.

(3.) LEARNED counsel for the appellants strenuously urged that the impugned judgment and decree runs contrary to section 74 of the Dhar State Land Revenue and Tenancy Act (No. 1) of 1940-41. According to him, Radhibai had become the full owner of the suit land when she got it by way of succession upon death of her husband Bheraji. Learned counsel for the appellants submitted that the suit land was the self acquired property of Bheraji and upon his death, Radhibai succeeded as a full owner thereof. Upon death of Radhibai, according to learned counsel for the appellants, Jadibai and Mainabai being daughters of Radhibai would succeed to the estate and not the plaintiffs being sons of Bheraji's brother deva. Learned counsel submitted that the impugned judgment and decree, therefore, runs contrary to the provisions contained in section 74 of the Act. In order to appreciate the contentions, section 74 of the Act is reproduced herein below for ready reference.