PURNANENDRA SINGH (DEAD) Vs. LAXMAN (DEAD)

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 31/07/1984, passed by Additional Judge to the Court of District Judge, Khargone, in Civil Regular Appeal No.23-A/1982, whereby the judgment and decree dated 29/08/1983, passed by Civil Judge, Class-II, Khargone, in Civil Suit No.100-A/1981, whereby suit filed by respondent was decreed and the counter claim filed by appellant was dismissed, was confirmed, the present appeal has been filed, which has been admitted for final hearing on 22/01/1985, on the following substantial question of law :-

(2.) Short facts of the case are that predecessor in title of the respondent, which shall be referred hereinafter as respondent, filed a suit on 02/11/1981, against the predecessor in title of the appellant, which shall be referred hereinafter as appellant for declaration alleging that the respondent is Bhumiswami of the land bearing Survey No.83, measuring 9.75, situated at village Jetapur, Khargone. It was alleged that the suit property was purchased by one Laxman, predecessor in title of respondent vide registered sale deed dated 17/02/1959 from the Punendra Singh, predecessor in title of appellants. It was alleged that as per the prevailing law the purchaser was required to obtain the permission for purchasing the property but the permission was not obtained, therefore, the name of appellant is continuing in the revenue record. It was alleged in the plaint that the respondent is in occupation of the suit property since 17/02/1959 and is cultivating the land, as Bhumiswami. It was also alleged that possession of land of respondent was peaceful continuous without any interruption within the knowledge of the other party. It was also alleged that appellant has no right, title or interest in the suit property. It was alleged that as per the agreement respondent purchased the suit property from the appellant for a sum of Rs.2,200/- out of which Rs.500/- were paid as earnest money on 31/01/1959 and balance amount was paid on 17/02/1959 and after execution of sale deed the possession was given by the appellant to the respondent. Further case of the respondent was that respondent is in occupation of the land since more than 12 years, therefore, on the basis of hostile title respondent is the owner of the suit property. It was alleged that as per Section 70 (2) of the Madhya Bharat Land Revenue and Tenancy Act, (which shall be referred hereinafter as MBLRT Act) the respondent applied for validation of the sale deed vide application dated 17/11/1975, which was refused by Sub Divisional Officer vide order dated 21/10/1980, hence the respondent was compelled to file the suit for declaration of his title. In the suit, it was prayed that respondent is the owner of the suit property and is also entitle to get his name mutated in the revenue record.

(3.) The suit was contested by the appellant, wherein plaint allegations were denied. It was admitted that the respondent is in possession of the property. However, it was denied that the respondent was the owner of suit property. It was alleged that respondent was in possession with an understanding that in case permission is granted the respondent shall continue the possession otherwise possession shall be restored to the appellant. It was also admitted that the whole amount was paid to the appellant. However, it was denied that the respondent is the owner of the suit property on the basis of hostile title. On the basis of aforesaid facts stated in the written statement it was prayed that the suit be dismissed.