MISHRI MAL Vs. DHANNA

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff against an appellate decree the Additional Commissioner, Jodhpur, dated 19 3-1956 reversing the decree of the trial court and rejecting the appellant's suit for ejectment.

(2.) THE appellant based his claim on the ground that a well known as Togava and land attached to it (Khasra Nos. 1010, 1010/1 to 1010/9 & 1011, measuring 55 Bighas, 5 Biswas,) was in the Joint Bapi Khata Muafi of Dhanna defendant No. 1 and Dhura, sons of one Sada; that on Dhula's death his widow Smt. Singari came in possession of the land and sold her half share in the Bapi rights in favour of the plaintiff, that mutation was allowed in favour of the plaintiff whereby he was recorded as owner of the Bapi to the extent of one half; that Dhanna and his sons Khema and Hemiya defendants Nos 2 and 3 prevented him from cultivating the land and dispossed him wrongfully. THE plaintiff prayed for the following reliefs: - (1) Recovery of possession over the well and its Jao; (2) A declaration that the plaintiff was entitled to cultivate half of the land in both the crops and to irrigate them from the well to the extent of his share, and (3) A permanent injunction restraining the defendants from interfering with the cultivation of the plaintiff THE defendants denied the claim. THEir plea was that after Dhulla's death the land had been entirely and exclusively in their possession; that the plaintiff has no light or title to cultivate the land or to take water from the well; that Smt. Singari had no authority to transfer her share; that the transfer was illegal and unenforceable at law. THE trial court after framing necessary issues in the case and recording the evidence of the parties came to the conclusion that Smt. Singari came in possession of the land after Dhula's death; that Smt. Singari had full authority to sell her share; that the sale was genuine and enforceable. THE trial court passed a decree to the effect that the defendants should deliver possession over the well and the land in dispute to the plaintiff to the extent of the share of the deceased Dhulia and that it be also declared that the plaintiff was entitled to cultivate the land to an equal share. THE defendants went up in appeal before the learned Additional Commissioner, Jodhpur. who after examining the evidence came to the conclusion that the disputed land was not in possession of Smt. Singari and that she was never in separate possession of the land in dispute; that Mishrimal, plaintiff never got possession of the land; and that the first attempt made by him to recover possession met with resistance from the defendants. It was also held by the learned Additional Commissioner that Smt. Singari had no authority to transfer her share; that there was no legal necessity for her to transfer her share; that as the possession was not so delivered the sale deed was not effective. THE appeal was, therefore, allowed by him and the plaintiff's suit was directed to be dismissed. Hence this second appeal by the unsuccessful plaintiff.