BHAGWAN DAS SHARMA Vs. GAYA SAH

JUDGEMENT

(1.) This appeal has been filed by defendant No. 1. It arises out of a suit instituted by the plaintiffs for declaration of their title to some land and for recovery of possession thereof and for mesne profits as against defendant No. 1 (defendant first set), and in the alternative, for recovery of Rs. 3,500 with interest and damages, from defendants second to fourth sets.

(2.) The facts shortly stated, are as follows: It was alleged that the property in dispute had originally belonged to one Ganesh Chamar, and after sale for arrears of rent, it was purchased by Mosst Brajraj Kuer, who came in possession. According to the plaintiff's. Mosst. Brajraj Kuer had settled the disputed land with Bakshi Mangal Prasad, who, in his turn sold the same to defendant No. 3 a firm known as Anant Ram Gajadhar Prasad. This sale was effected in 1943. It was alleged that in 1956 the firm sold the disputed land to the plaintiffs by two sale deeds in the Farzi name of defendant No. 7. The sale deeds had been executed by defendant No. 2 (defendant second set) under a power-of-attorney given by defendant No. 4 (defendant fourth set), who was a Mukhtar-e-Am on behalf of the members of the firm According to the plaintiffs, defendant No. 4 was authorised to appoint a substitute to deal with the properties of the firm and thus defendant No. 2 had executed the two sale deeds. It was alleged that the plaintiffs were put in possession. Then, a dispute arose in the very year and a proceeding under Section 144 of the Code of Criminal Procedure was commenced in June, 1956. The proceeding was, however, dropped on the 12th September, 1956. But, soon thereafter, a second proceeding under Section 144 of the Code was started on the 29th September, Ultimately, there was a proceeding under Section 145 of the Code of Criminal Procedure, and by order dated the 15th June, 1957, this case was decided in favour of defendant No. 1, There was an alternative claim made by the plaintiffs to the effect that they were entitled to gel Rs. 3,500 from defendants Nos. 2, 3 and 4, who are the defendants second third and fourth parties. Hence this suit was instituted.

(3.) The suit was contested by defendant No. 1, according to whom, the plaintiffs had neither title to the disputed properties nor had they got possession as alleged. According to this defendant, the disputed lands had been settled with him in 1949, by the firm, which had by then decided to wind up its business. It was contended that since 1949 defendant No. 1 was in possession. The plaintiffs' sale deeds were said to be fabricated documents and it was contended that defendant No. 4 had no power on behalf of the partners of the firm to appoint any substitute for him and, therefore, the power-of-attorney excuted by defendant No. 1 in favour of defendant No. 7 was invalid. Hence it was alleged that defendant No. 2 could not have validly executed the sale deeds upon which the plaintiffs relied.