Abhay M.Naik, J. - (1.)-This judgment disposes of S.A.No.86/2001 and S.A.No.38/2001 since both the appeals arise out of the common judgment and decree dated 21.11.2000 passed by the Court of Additional District Judge, Lahar, District Bhind in Civil Appeal No.24/97.
(2.)There situated a land bearing survey Nos. 1472, 1480, 1486, 1482, 1811, in total area of 3.354 hect. in village Devri Kalan, Tahsil Lahar, District Bhind, which belonged to Sughar Singh, father of plaintiff No. 1 and husband of plaintiff No.2. After the death of Sughar Singh in 1968, said land devolved upon the plaintiffs being son and widow of the deceased. They continued to occupy the said land as Bhumiswami upto year 1970. Original defendant No.1, namely - Seel Dulaiya submitted an application under Section 145 of Cr.P.C. before the Sub Divisional Magistrate, Lahar, which was registered at Misc. Criminal Case No. 106/70. Seel Dulaiya wrongly asserted possession over the said land for more than 12 years. It was stated in the application that on 5.7.1970, plaintiffs Mohan Singh and Mst.Gendarani alias Parvati tried to forcibly occupy the suit land. As it was found that there was apprehension of dispute, consequently, an attachment order was passed on 21.7.1970 and the suit land was handed over to original defendant No.3, namely - Ishwar Dayal Patel on the same date as Supurdagidar. Application under Section 145 of Cr.P.C. was dismissed in default of appearance, however, S.D.M. Lahar did not direct in specific for release of the suit land from attachment. On 3.12.1975, plaintiffs submitted an application before S.D.M. for restoration of possession of the suit land. They also prayed that crops harvested by the Supurdagidar may also be handed over to the plaintiffs. In response to this application, defendant No. 1 (Seel Dulaiya) submitted the reply that she had already received possession of the disputed land on 23.3.1974 and is also in receipt of accounts for the intervening period from Ishwar Dayal. Identical reply was also submitted by Ishwar Dayal. Plaintiffs insisted that at the time of Supurdagi, possession was obtained from the plaintiffs, therefore, the same is liable to be restored to them. S.D.M. Lahar, vide his order dt.19.2.1979 found that there was no evidence on record to ascertain any specific party from whom the possession of the suit land was obtained at the time of attachment. This being so, plaintiffs were directed to approach Civil Court, however, it was also equally found that Ishwar Dayal had committed criminal breach of trust and was liable to be prosecuted. Criminal Revision bearing No. 14/79 was submitted before the Sessions Judge, who vide his order dt. 14.7.1980 quashed the order of prosecution. Aggrieved by the aforesaid, Misc. Criminal Case Nos.759/80 and 812/80 were submitted, which were dismissed by this Court.
(3.)With the aforesaid pleadings, plaintiffs instituted civil suit for declaration of title, restoration of possession and mesne profits against Seel Dulaiya, Kamta Prasad and Ishwar Dayal.