DHARMA Vs. HARBAI

JUDGEMENT

(1.) The plaintiff-respondent filed a suit for possession of agricultural land measuring 117 kanals 15 marlas situated in village Kharkhara, District Rohtak. It is alleged in the plaint that the plaintiff-respondent is holding Dholidar tenure in respect of the suit land, of which the Gram Panchayat is the proprietor and that she had filed an application for ejectment against her tenants, who were evicted and physical possession was taken by her on December 21, 1967, and January 22, 1968. The defendant-appellant was her Mukhtiar and conducted the litigation on her behalf. He ceased to be her Mukhtiar from June 19, 1968, as she had terminated his authority for acting as such on her behalf. It is further alleged in the plaint that the defendant-appellant had trespassed into the land and took its forcible possession and that he had also fraudulently got executed a registered lease deed from her for 99 years for a consideration of Rs. 480/- per year in his favour; as a matter of fact, she had never executed any lease deed in his favour nor was she competent to alienate the land and as such the lease deed is a nullity in the eye of law.

(2.) The allegations of the plaintiff-respondent were controverted by the defendant-appellant by way of written statement. It was averred in the written statement that the village Panchayat had filed a suit for cancellation of Dholi rights of the plaintiff-respondent but the Panchayat did not succeed as the suit was dismissed. It was admitted by the defendant-appellant that the tenants were ejected from the suit land but the physical possession was taken over by the defendant-appellant, who along with his sons is in actual possession of the suit land as a lease-deed was executed by the plaintiff voluntarily and of her own free will in his favour. The allegations of fraud and misrepresentation were also specifically denied. The parties contested on the following issues :-

(3.) Issue No. 1 was decided by the trial Court against the plaintiff-respondent and it was held that she could defend herself by pleading her incapacity but she herself cannot bring a suit to challenge the lease deed, which was executed by her, except on the ground of fraud and misrepresentation. Issue No. 2 was decided in favour of the defendant-appellant and it was held that the plaintiff-respondent executed the lease deed in his favour of her free will. Issue No. 3 was conceded by the defendant and issue Nos. 4 and 5 were not pressed by him. Hence issue Nos. 3 to 5 were decided against the defendant-appellant. As a result of findings on issue No. 1 and 2, the suit of the plaintiff-respondent was dismissed by the trial Court. The plaintiff filed an appeal before the District Judge, who reversed the findings of the trial Court on issue No. 1 and held that the plaintiff had no capacity to execute the lease deed in dispute and thus entitled to repudiate it and the findings of the trial Court on other issues were affirmed. Consequently, the learned District Judge accepted the appeal and passed a decree for possession of the suit land in favour of the plaintiff. Hence this second appeal by the defendant.