LAL SINGH Vs. GANGAN SINGH

JUDGEMENT

(1.) This second appeal arises out of the concurrent findings of fact by both the Courts below.

(2.) This case has a chequered history. Some of the admitted facts of this case are that Sunda alias Sunder Singh and Ram Singh, the two brothers, were original owners of the suit land. They sold the same to Lal Singh plaintiff-appellant in 1999 Bk. The sons of the vendors thereupon challenged the sale by instituting the suit for usual declaration that the sale would not affect their reversionary rights after the death of the vendors. This suit was decreed and it was directed that the reversioners would be entitled to recover possession of the suit land after the death of the vendors on payment of Rs. 690/-. Lal Singh, plaintiff-appellant, filed an appeal, which was allowed by the first appellate Court and the reversioners' suit was dismissed. The reversioners, however, succeeded in second appeal before the High Court and it was held that they would be entitled to get back possession of the suit land, after the death of the vendors, on payment of Rs. 1378/-. But on the basis of trial Court's decree, under some misconception, a mutation was entered in the revenue papers by converting the sale into mortgage for a consideration of Rs. 690/-. It appears that High Court's judgment was not produced before the revenue authorities. Thus, Sunda and Ram Singh were entered as owners of the suit land and Lal Singh vendee as the mortgagee. In this situation, a suit was filed by the plaintiff-appellant for a declaration that he was the owner of the suit land and the mutation of mortgage in his favour was illegal, null and void and ineffectual as against his rights. During the pendency of the suit, sons of the vendor-respondents got the suit land redeemed in their favour on payment of Rs. 1,378/-, and obtained possession of the suit land. Originally, the suit was for declaration but after redemption, Lal Singh plaintiff made an application for amendment and the suit was accordingly amended and converted into suit for possession. In the plaint, it was alleged that Sunda and Ram Singh, the vendors, had died about 10/12 years before the filing of the suit and their reversioners had not filed a suit for recovery of possession of the suit land, on the basis of a declaratory decree in their favour, within a prescribed period of three years from the date of the death of the vendors and as such they had lost their right to recover possession of the suit land and the plaintiff had thus become the owner. The suit was resisted by the defendant-respondents and the parties contested on the following issues :-

(3.) The suit was initially decreed by the trial Court, but on appeal the learned Additional District Judge remanded the case for a fresh trial. The trial Court again decreed the suit and maintained its earlier judgment. On appeal, the learned District Judge permitted the defendants to amend their written statement with the object of raising the plea of estoppel as contemplated by Section 41 of the Transfer of Property Act and accordingly the written statement was amended and the plaintiff also filed replication. Thereafter, the learned District Judge vide his order dated June 27, 1961, deleted issue No. 7 and substituted the following three issues as Nos. 7 to 9, renumbered the relief issue as No. 10 and called the report of the trial Court on the additional issues, which are reproduced below :-