LAWS(PVC)-1933-2-176

KESHAVLAL SAKHIDAS SANGHANI Vs. AMARCHAND SOMCHAND

Decided On February 01, 1933
KESHAVLAL SAKHIDAS SANGHANI Appellant
V/S
AMARCHAND SOMCHAND Respondents

JUDGEMENT

(1.) The property in suit belonged to one Somchand, the father of the minor plaintiff. After Somchand's death, the mother of the plaintiff Amrutbai entered into an agreement to sell the property in suit for Rs. 10,251 to defendant No. 2, the appellant, in 1917, and applied to the High Court on the Original Side in February 1918 to be appointed guardian of her minor son, the plaintiff Amarchand, of his person and property. In March 1918, she was appointed guardian of the person and property, and permission was granted to her to complete the agreement. In April 1918, a sale deed, Exhibit 64, was executed by her in favour of defendant No. 2. He carried out improvements and also fought out a litigation in respect of the land. After the death of the plaintiff's mother, the paternal uncle of the minor plaintiff brought a suit on the Original Side of the High Court in 1924 for setting aside the appointment of the mother as guardian and for rescission of the agreement of sale, and mesne profits. Defendant No. 2 filed a written-statement taking exception to the jurisdiction of the Court and asking for compensation to be paid for the purchase price and for the improvements effected by him. He remained absent and an ex parts decree was passed in December 1925 setting aside the appointment of plaintiff's mother as guardian and declaring the sale in favour of defendant No. 2 to be not binding on the minor.

(2.) The present suit was brought in the First Class Subordinate Judge's Court at Thana for possession of the property from defendant No. 1 who was a tenant on the land. Defendant No. 1 denied the plaintiff's ownership and contended that he was a tenant of defendant No. 2, Defendant No. 2 was made a party and contended that the decree of the High Court was without jurisdiction and not binding, that the present suit was brrred by Section 12 and Order II, Rule 2, of the Civil Procedure Code, that it was time-barred as the defendant was brought on the record more than twelve years after his possession commenced, and that the plaintiff was not entitled to possession without paying the purchase money and adequate compensation for the improvements he had made.

(3.) The learned Subordinate Judge hold that the suit was not barred by Order II, Rule 2, that the suit was not barred by limitation, that the decree on the Original Side of the High Court was not without jurisdiction, that the defendant's contention was barred by res judicata, and that the plaintiff was entitled to possession of the suit property from the defendant without making any payment for improvements, though he recorded a finding that out of the sale- price, Rs. 8,551 made up of Rs. 3,300 which were paid for the satisfaction of the mortgage effected by the plaintiff's father on the property in suit, and Rs. 5,251 deposited with the Accountant General and withdrawn by the plaintiff's present guardian, constituted benefit to the minor plaintiff, but that claim ought to have been made under Section 41 of the Specific Relief Act in the suit on the Original Side of the High Court, under Section 39 of the Specific Relief Act.