BHAGWATI PRASAD Vs. USHADEVI

JUDGEMENT

(1.) This is defendant's second appeal against the judgment and decree dated 28-3-1981, passed by the Second Additional District Judge, Vidisha, in Civil Appeal No. 37-A/ 80, preferred against the judgment and decree dated 10-4-1980, passed in Civil Suit No. 28-A/ 1976 by the Civil Judge, Class I, Vidisha.

(2.) Brief facts giving rise to this appeal are these. The plainiffs / respondents Nos. l and 2, instituted a suit against the appellant and his brother Onkar Prasad, for possession, permanent injunction and for recovery of mesne profits relating to suit land, area 24.250 hectares, described in para 1 of the plaint on the averment that originally the suit land was part of the joint holding of the two defendants in equal share. Appellant Bhagwati Prasad sold his share by a registered sale-deed dated 29-8-1970 to Trimbak Rao for a consideration of Rs. 900/-. Trimbak Rao, in turn, sold the land so purchased to the plaintiffs vide sale-deed dated 17-8-1971. The plaintiffs are the Bhumiswamis who applied before the Tahsildar for partition of the land purchased from the joint holding under S. 178 of the M. P. Land Revenue Code, 1959, for short, the Code (Revenue Case No. 18 / A-27-72-73), wherein, after notice to the defendant, ex parte order was passed against Bhagwati Prasadon 2-5-1974, certified copy of which is Ex.P/2. In another proceeding by the plaintiff for possession of specific area against Onkar Prasad, the brother of the plaintiff (Case No. 16A-27/75-76), the Tahsildar passed an order on 13-9-1976 (Ex.P/ 1) of partition as both the brothers were in possession of the land, directed that symbolic possession specifying the area purchased be given to purchaser. During the pendency of the proceedings of partition against Onkar Prasad, the appellant instituted a suit for declaration and permanent injunction against Trimbak Rao and present respondents that the sale-deed dated 29-8-1970 is not an out and out sale, but a security for loan advanced. That suit was dismissed. Against that, an appeal was filed which was also dismissed on 13-10-1978 by the District Judge, Vidisha, certified. copy of which is Ex. P/5, holding that sale in favour of Trimbak Rao was an absolute sale and, observed that the purchasers of Trimbak Rao can get possession of the land only after proceeding for partition under S.178 of the Code.

(3.) In the present suit, the defendant No. 2, Onkar Prasad, remained ex parte, while appellant defendant No. 1 contested the suit on various grounds. The trial Court held that the plaintiffs are entitled for actual possession of the suit land as per partition effected under S.178 of the Code. In so far as the mesne profits are concerned, the trial Court found that till the date of effective partition by symbolic possession, i.e., 2-5-1976, plaintiffs are not entitled to mesne profits. However, mesne profits at the rate of Rs. 3,000/- per annum were granted from 2-5-1976. Aggrieved of this judgment and decree, the plaintiffs as well as defendant, preferred appeal. The First Appellate Court, while allowing the appeal of the plaintiffs for claim of mesne profits from 2-5-1974, dismissed the appeal of the defendant. Hence, this second appeal which was admitted by this Court on the following substantial questions of law :