RAGHU NATH Vs. MANSA AND ANOTHER

JUDGEMENT

(1.) THIS second appeal has arisen in the following circumstances. Rattan Singh defendant No. 1 was owner of one -third share in 33 Bighas 18 Biswas of land situated in village Sisana. Some land had been mortgaged in favour of Suba Singh and others including Mansa plaintiff (who is a respondent in this Court) for a sum of Rs. 2,250/ -; the plaintiff's mortgage money being Rs. 600/ -. On 7th January 1950 Rattan Singh executed a sale -deed in respect of the land in favour of the plaintiff for Rs. 2,500/. The sale -deed was duly registered. The mortgage amount of Rs. 600/ - due to the plaintiff was adjusted in the sale price, and a sum of Rs. 1,650/ - was left with the plaintiff for payment to the previous mortgagees. Rs. 140/ - were paid before the Sub -Registrar and Rs. 110/ - were given by the plaintiff for the expenses of the execution of the deed etc. Mutation on the basis of the sale -deed was entered on 12th March 1950, but the same was rejected on 19th September the same year. Later Rattan Singh was allotted the land described in para 4 of the plaint in lieu of the land referred to above. His mortgages were given separate pieces of land for possession in their capacity as mortgagees, while the land described in clause F of para 4 of the plaint was allotted to Rattan Singh as unencumbered. The plaintiff, Mansa, and Mst. Mari were holders of the remaining two -third share in the land in equal shares before consolidation. Mst. Mari is said to have died about five years ago and her share in the land is said to have devolved upon Mansa plaintiff and Rattan Singh in equal shares. Thereafter, Rattan Singh executed a sale -deed in favour of Raghunath defendant No. 2 for Rs. 10,000/ - in respect of the land inherited by him from Mst. Mari and the land described in para 4 of the plaint excluding the land described in clause D. This sale -deed is dated the 16th January 1956 and the document was duly registered. On knowing of this transaction Mansa plaintiff approached the revenue authorities regarding mutation of the sale in his favour. By means of an order dated the 14th August 1956 the Collector directed the previous mutation order dated the 19th September 1950 to be reviewed. The Mutation Officer upheld the previous mutation order and the appeal preferred against that order by the plaintiff was rejected by the Collector on the 10th May 1957. On 20th August 1958 the plaintiff instituted the present suit for a declaration that he had acquired ownership of the suit land by the sale -deed dated the 7th January 1950, and that the sale -deed executed by Rattan Singh defendant No 1 in favour of Raghunath dated the 16th January 1956 was inoperative and ineffectual as against his rights of ownership. He also claimed possession of the land described in clause F of para 4 of the plaint on the allegation that Raghunath defendant was in possession without any title, and that the sale -deed dated the 16th January 1956 conferred no right or interest upon him. It was also averred that the sale -deed in favour of Raghunath defendant No. 2 was a fictitious document executed for the purpose of depriving the plaintiff of his right of ownership in the land.

(2.) BOTH the defendants denied the plaintiff's claim and pleaded that the sale in plaintiff's favour had been cancelled a few months afterwards and that thereafter the 'plaintiff had got the land comprised in Khasra No. 3452 as mortgagee from Rattan Singh by means of a mutation attested on 26th August 1951 and therefore the plaintiff had only mortgagee rights in the land mortgaged with him without any rights of ownership in the remaining land. Raghunath also pleaded bona fide character of his purchase which deserved protection under section 41 of the Transfer of Property Act.

(3.) WHETHER the plaintiff is estopped from instituting the suit?