SHAKUR KHAN Vs. RAMJANI AND OTHERS

JUDGEMENT

(1.) By this second appeal under section 100 of CPC the defendant has challenged the concurrent judgments of two courts below. Trial court by judgment dated 7/9/1999 had decreed the CS No. 126A/95 filed by respondents 1 to 5 and the first appellate court by judgment dated 29th September 2000 while dismissing the appeal has decreed the cross objection of respondents no. 1 to 5.

(2.) The respondents no. 1 to 5 had filed the suit for declaration, possession and mesne profit with the plea that suit land situated at village Golakhedi belongs to them and that husband of respondent no. 5 Sher Khan was not well since 3 years prior to his death and was hospitalized therefore, the suit land alongwith the land at village Shivpura was being cultivated through the labourers and five years prior to filing of suit he had died. At that time respondents no. 2 to 4 were minor and respondent no. 1 was taking care of the land at village Shivpura and suit land was lying unattended and there was possibility of encroachment, therefore, a request was made by respondents to appellant to cultivate the land till respondent no. 2 becomes major and accordingly by oral agreement the possession of land was given to appellant with the condition that after respondent no. 2 becomes major and able to cultivate the land, the appellant will return. Further case setup by respondents no. 1 to 5 was that when respondent no. 2 became able to cultivate the land a request was made on 1/7/1995 from appellant demanding possession of land but it was denied by appellant.

(3.) The appellant by filing the written statement had denied the plaint averments and had taken the plea that respondents no. 1 to 5 were in need of money, therefore, they had entered into an agreement to sale of the suit land with Mukhtarkhan and had received advance of Rs. 60,000/- but remaining amount could not be paid by Mukhtarkhan, hence the agreement came to an end and that respondents no. 1 to 5 had to return the advance amount to Mukhtarkhan, therefore, they on 1/3/1998 sold the suit land to appellant for a consideration of Rs. 1,26,000/- out of which Rs. 1,20,000/- was paid by appellant and remaining Rs. 6,000/- was also paid after 3 months. Hence the entire consideration was paid but in the good faith sale deed was not executed. A further plea was raised that the dispute was referred to Panchayat who had decided it in favour of appellant on 26/1/1996. Alternatively it was also pleaded that appellant had continued in possession of the suit land as sikmi for more than 6 years therefore, occupancy tenancy right had accrued in his favour and under the provisions of MP Land Revenue Code he cannot be evicted. The plea of mesne profit was also denied.