- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 11.01.2012 passed by Additional District Judge, Sumerpur, District Pali, whereby, the appeal filed against judgment and decree dated 03.01.2005 passed by Civil Judge (Junior Division), Sumerpur has been dismissed.
(2.) THE facts in brief may be noticed thus: the plaintiff - respondent Bhabhut Mal filed a suit, inter alia, with the averments that the property in dispute admeasuring 65x20 ft. was situated in village Nakhatgarh, which was of the plaintiff's ownership; it was claimed that the property in question belonged to late Chiman Lal Ji as on partition between Chiman Lal Ji and late Javan Mal Ji, the property fell in his share and from the date of partition in the year 1937 the plot in question was owned by Chiman Lal; out of the total land admeasuring 65x40 ft. which came to his share in 1937, Chiman Lal sold a plot admeasuring 65x20 ft. by registered sale deed dated 27.01.1966 to one Bal Chand; Chiman Lal expired on 02.06.1982 and prior to his death he executed a Will dated 11.07.1983 bequeathing his property to the plaintiff and, therefore, he was owner of the suit property; it was claimed that the letter of administration qua the said Will has been issued by the Ratnagiri Court in favour of the plaintff; however, the appellant -defendant sold the plot in question to the other respondents by way of registered sale deed dated 23.10.1986 though he had no title to the plot in question and when the plaintiff came to know of the same in the year 1989 the suit for cancellation of sale deed and for mesne profit was filed on 10.07.1991. A written statement was filed by the appellant -defendant; it was admitted that the property was ancestral; however, it was claimed that in the year 1940 Jawan Mal expired and thereafter Chiman Lal started staying at Ratnagiri (Maharashtra) permanently; it was claimed that in Samwat year 2007 Chiman Lal handed over the property in dispute to Smt. Jatnu Bai wife of late Jawan Mal and the property in question was in her possession and the appellant being son of Smt. Jatnu Bai was entitled to transfer the same; it was contended that in the record of the Municipality name of Jawan Mal and Smt. Jatnu Bai has been indicated; the property was never in possession of the plaintiff; the execution of Will by Chiman Lal was denied; title of Chiman Lal was also denied; the suit was claimed as barred by limitation and in absence of declaration it was claimed that the suit was not maintainable.
(3.) THE trial court framed five issues and came to the conclusion that the appellant had no right to execute the sale deed qua the land in dispute; the plaintiff was entitled to mesne profit @ Rs.50/ - per month; the appellant had failed to prove adverse possession and, therefore, the plaintiff was entitled to get possession of the suit property; the suit was not barred by limitation and, consequently, decreed the suit filed by the plaintiff and directed handing over of possession alongwith mesne profit.;