- (1.)THE only question of law which arises in this Letters Patent appeal is whether a suit for possession on the basis of a possessory title by a person who was in the peaceful possession of the property and who was dispossessed by a trespasser without any title is maintainable against the trespasser.
(2.)FIELD survey number 9/1b area 3 Acres and 13 gunthas, of mouza Khanapur najik, Rahamapur in Amrawati district originally belonged to the Gunusa Anusa. He executed a sale-deed Ex. P-8 in respect of this field in favour of one Sadashioswami for an ostensible consideration of Rs. 177/ -. On 1st May 1940 he executed of Sadashioswami (Ganusa ?) which entitled him to cultivate the field on lease for the year 1940-41. Possession of the field thus continued to remain with Ganusa. It is not disputed that even after the expiry of this lease the field continued to remain in possession of Ganusa. Sadashioswami who was celibate Sanyasi died about 6 months after the date of the sale-deed and Ganusa also died in July 1942. After Ganusa the field came in possession of his son Ambusa, Ambusa died in March 1943. Ambusa had 5 sons. Plaintiff Yeshwant is one of them. The field, however, actually remained in the cultivation of Ambusa's another son Khushal, who is defendant No. 4. While Khushal was in possession of the field sometime in June 1948 he was dispossessed by defendant No. 1 Vishwanath, who claimed ownership of the field in two capacities. His main claim was as a Chela of deceased Sadashioswami and he claimed to have ascended his Gadi sometime in November 1947. His alternative claim was that he was an heir to Sadashioswami being the son of the sister or Sadashioswami.
(3.)AFTER the defendant no. 1 dispossessed Khushal, he sold the field to one Parashramsa Balkisansa by a registered sale-deed dated 12th February 1949 and handed over possession to the purchaser. Parashramsa also parted with the field having sold it away by a sale-deed dated 24th January 1952 to the defendant no. 2, who is the appellant in this appeal, for a consideration of Rs. 2,996-14-0. While thus defendant no. 2 was in possession of the field, the plaintiff, who is one of the sons of Ambusa, filed a suit for possession. His case was that contemporaneous with the sale-deed there was an agreement of reconveyance which was entered into by Sadashioswami with the deceased Ganusa and that Ganusa had all along been trying to get a reconveyance in his favour. It was contended that the transaction was really a loan transaction. An effort was made to obtain a reconveyance by publishing a notice on 14-4-1941 in a local newspaper named Uday, and accordingly he attended the office of the Sub-Registrar at Amrawati on 30-4-1974 awaiting the real owner to come there in pursuance of the advertisement to execute the document of reconveyance. None, however, turned up/ However, according to the plaintiff, the ownership of the field continued with Ganusa and thereafter with his heirs. A relief on possession was thus claimed. the pleading of the plaintiff in paragraph 8 of the plaint was as follows:
"the plaintiff hence sues for possession of the field on the basis of his prior possession till the date of his dispossession. . . . . . . . . . . . . "
The sale by Ganusa of Sadashiowami was also challenged on the ground of want of legal necessity and it was alleged that it was not binding on Ambusa who had half share in the field. The price of the field was alleged to be Rs. 1000/- at the time of the sale.