SAKRIBAI Vs. KAILASH CHANDRA

JUDGEMENT

(1.) THIS is plaintiffs second appeal under section 100 of the Code of Civil Procedure against the judgment of reversal. Plaintiff filed the suit for declaration of title as also for recovery of possession in relation to 13.55 acres of land situated in village Sattorniya in the district of Sehore. IIIrd Civil Judge, Class -II, Sehore by judgment and decree dated 28.07.1984 passed in Civil Suit No. 24 -A of 1984 decreed the suit. Defendant No. 1 Kailash Chandra aggrieved by the same preferred appeal and the IInd Addl. District Judge. Sehore, by judgment and decree dated 9.1.1989 passed in Civil Appeal No. 25 -A/1987 allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the plaintiffs' suit. Plaintiffs being aggrieved by the same have preferred this appeal and by order dated 21.07.1989, appeal has been admitted on the following substantial question of law : -

(2.) ADMITTED facts of the case are that plaintiffs Nos. 1 and 2 namely Sakribai and Ramkibai are the daughters of deceased, Dhansingh whereas plaintiff No. 3 Narayan Singh is his brother. Disputed land was recorded in the name of defendant No. 2 Gendibai who has sold the same to defendant No. 1 Kailash Chandra. Plaintiff filed a suit impleading defendant No. 2 Gendibai as a party in the Court of Civil Judge, Class -II, Sehore which was registered as Civil Suit No. 106 -A/1975. It was decreed ex parte. Defendant No. 1 Kailash Chandra has also filed a suit against defendant No. 2 and others for perpetual injunction which was registered as civil Suit No. 114 -A/1977 which was decreed in his favour by judgment and decree dated 05.02.1979. Defendant No. 2 Gendibai has also filed the suit impleading defendant No. 1 as party which was registered as Civil Suit No. 128 -A of 1976. But the same was dismissed for default.

(3.) ACCORDING to defendant No. 1, he has no knowledge as to whether the plaintiffs are the successors of the deceased Dhan Singh. According to him, Dhan Singh died in the year 1974 and his name was recorded over the disputed land of village Sattorniya. His further assertion is that about 20 years before his death, Dhan Singh handed over 6.7 acres of land to defendant No. 2 on 'Shikmi' and since then she being in possession of the land, according to the prevalent law, she became its owner. His further stand is that defendant No. 2 Gendibai sold 6.77 acres of land to him by registered sale deed dt. 18.6.1976 on consideration of Rs. 6500/ - According to this defendant, plaintiffs were never in possession of the disputed land nor they have paid any rent of the same. He further pleaded ignorance about filing of suit by plaintiffs against defendant No. 2 and he has further stated that he was not a party in the said suit. According to him, after purchase of the land, he took its possession from defendant No. 2 and since then he is in continuous possession of the same. He further pleaded that he is a bona fide purchaser and the sale deed has never been challenged before any competent civil Court. According to him, it is a collusive suit by plaintiffs and defendant No. 2. His further stand is that the suit filed by him bearing No. Civil Suit No. 114 -A/1977 against defendant No. 2 were decreed and so long as the said decree is not set aside, plaintiff suit is not maintainable.