C.K. Thakker. J. - (1.) Leave granted.
(2.) The present appeal is filed against the judgment and order passed by the High Court of Madhya Pradesh at Jabalpur in Second Appeal No. 3% of 1998 by which the High Court confirmed the judgment and order passed by the Court of First Additional District Judge, Hoshangabad in Civil Regular Appeal No. 1-A of 1997, setting aside the judgment and decree passed by the Court of First Civil Judge, Class II, Hoshangabad in Civil Suit No. 31-A of 1991.
(3.) To appreciate the controversy raised in this appeal, few relevant facts may be noted. Ramadhar - appellant herein purchased a house bearing Municipal Ward No. 80, Sheet No. 34 situate at Mohalla Gwaltoli in Hoshangabad (M.P) by a registered sale-deed dated February 23, 1981 from one Hiralal Babulal for a consideration of Rs. 12,000/-. In the said deed it was expressly mentioned that Hiralal was the absolute owner of the property and he had full rights to sell the house. It was also stated that in future if any of his brothers or legal representatives would make any claim or raise any dispute or the purchaser would be dispossessed, the seller would pay compensation, damages and costs to the buyer. It was the case of the appellant that Ganpat, brother of Hiralal and Bhagwandas (respondent herein) claimed that Hiralal did not have the right to sell the house inasmuch as it was the ancestral property of their family and was not self acquired property of Hiralal. According to the appellant, both, Ganpat and Bhagwandas took forcible possession of some portion of the house on the southern side of the property comprising of Dhalia (roofed house) and adjoining Angana (open land). Ganpat also constructed Chhapri (thatched roof) thereon. The appellant, therefore, was constrained to file Civil Suit No. 40-A of 1982 in the Court of Civil Judge, Class II, Hoshangabad against Hiralal (vendor), Ganpat and Bhagwandas (respondent herein) for possession and removal of unauthorized encroachment. A written statement was filed by Hiralal (vendor) admitting the claim of the plaintiff. So far as Ganpat and Bhagwandas are concerned, they filed joint written statement contending that the property was joint family property and Hiralal had no right to sell it to the plaintiff. The sale deed executed by Hiralal was, therefore, illegal, void and inoperative. The Trial Court framed necessary issues on the basis of pleadings of the parties and held that Hiralal was absolute and full owner of the property and he had right to sell it to the plaintiff. Accordingly, the sale by Hiralal in favour of the plaintiff was held legal, valid and in accordance with law. As to possession of defendant Nos. 1 and 2, the Court held that defendant Ganpat was found to be in possession of the suit land but he could not produce any evidence to show as to how his possession could be said to be lawful. Ganpat was, therefore, held to be in unlawful and unauthorized possession of property and was ordered by the Court to handover possession of Chhapri to the plaintiff. Thus, a decree was passed against him. ;