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CASE NO.: Appeal (civil)  4361 of 2007

PETITIONER: Harichand (Dead) through LRs

RESPONDENT: Dharampal Singh Baba & Ors

DATE OF JUDGMENT: 18/09/2007

BENCH: A.K.MATHUR & MARKANDEY KATJU

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.  4361             OF 2007 [Arising out of S.L.P.(c) No.16368 of 2006]   

A.K. MATHUR, J.

1.              Leave granted.

2.      This appeal is directed against the order passed by learned  Single Judge of the High Court of Madhya Pradesh at Gwalior on  22.8.1989 in First Appeal No.1  of 1975 whereby the learned Single  Judge set aside the judgment and decree of the trial court and  allowed the appeal and dismissed the suit. Aggrieved against this  order the present special leave petition was filed but prior to this one  L.P.A. against this order was filed before the Division Bench of the  High Court of Madhya Pradesh which came to be registered as  L.P.A.No.55 of 1989 whereby the Division Bench held that the  present L.P.A. was not maintainable as  the  State has abolished  the  same and the said decision was upheld by this Court. Subsequently,  the State Government restored the same but in the meanwhile, this  appeal came up before the Division Bench and the Division Bench of  the High Court dismissed the L.P.A. as not maintainable in view of  the decision of the High Court  in Harshlal Dwivedi v. State of M.P.&  Ors decided on 29.8.2005.  Thereafter the present appeal was filed  against the order  dated 22.8.1989 passed by  learned Single Judge   in F.A.No.1 of 1975. Office reported that the appeal is barred by 5866  days.  Therefore, an application was filed for condonation of delay in  filing the S.L.P. before this Court and accordingly the delay was  condoned by this Court on 15.9.2006. Now, the appeal has come up  for  final disposal. 3.             We have heard learned counsel for the parties and  perused the record. A suit was instituted on 17.2.1964 by Shiv Singh,  the father of the plaintiff- Bapu Saheb Temak. However during the  pendency of the suit,  the plaintiff was not interested in prosecuting  the suit. Therefore, Defendant No.6- Hari Chand secured an order  from the Court and his interest was restricted to the question raised in  the plaint by virtue of an agreement  for sale  executed in his favour  by Shiv Singh on 18.3.1967.  The suit was accordingly contested  between Defendant No.1- Dharmawati (deceased) and Defendant  No.6- Hari Chand.  Earlier, Suit No.25 of 1962 was filed by Bapu  Bhaiya Temak, the father of the plaintiff against the State  Government for recovery of rent in respect of the suit premises for  a  period of 26.9.1948 to 26.6.1950 and in that suit Janki Bai was  impleaded as Defendant No.2.  Defendant No.1- State Government  pleaded that it was prepared to pay the rent but  the question of

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entitlement of rent was the issue between the plaintiff and defendant  No.2. Two issues were framed in that suit which read as follows:

" i)    Whether defendant No.1 is a tenant of the plaintiff  and he is entitled to collect the rent ? ii)Whether the plaintiff was entrusted with the  arrangement of the Sansthan including the disputed  house and no right of ownership was transferred to  him?"

Both the issues were decided in favour of Defendant No.1 and she  was entitled to receive the rent from the State Government for the suit  premises. This decision of the trial court was eventually affirmed in  the second appeal  and a finding was recorded that  Bapu Bhaiya  Temak  was her agent only and entitled to receive the rent for the suit  premises  which belonged to Janki Bai. In order to come to this  finding the High Court in second appeal relied on a decision of the  Council of Regency. That suit came to an end after the finding given  in second appeal. The present suit was filed in 1964. In this suit, the  plaintiff- Shiv Singh challenged the sale deed dated 10.1.1963 that  the same be declared not binding on the plaintiff- Shiv Singh and the  respondents be injuncted permanently from interfering with the  plaintiff’s ownership and possession of the premises covered by the   sale deed.  The sale deed was executed by defendant  No.2- Janki  Bai and that binds her. She died during the trial of the suit and her  adopted son was impleaded as respondent No.2.  This suit was  decreed by the trial court and aggrieved against this suit, the present  appeal was filed by  the legal representatives of defendant \026Janki  Bai.

4.              In order to appreciate the controversy involved in this  appeal, a few facts may be narrated here.  The dispute relates to the  property situated in Gwalior and belonged to one Santoba Temak,  also known as Sirdar Temak. These two properties were residential  houses known as ’Badi Kothi’ and ’Chhoti Knthi’ located in a big  bagicha (garden). The  pedigree reveals that Madho Rao Temak had  two sons namely,Yashwant Rao Temak  and Bapu Sahab Temak.  Yashwant Rao Temak died in 1924. Bapu Sahab Temak  died in the  year 1964. Janki Bai,  the wife of Yashwant Rao Temak died  on  12.12.1968 leaving behind Vijay Singh, the adopted son. Vijay Singh  died during the pendency of the first appeal. Bapu Sahab Temak’s  son Shiv Singh, the original plaintiff died during the pendency of the  first appeal.  Yashwant Rao Temak was in the service of erstwhile  Gwalior State and this was his Jagir. When he died his brother,  Bapu  Saheb Temak was alive and the plaintiff’s case was that the said  property  devolved on Bapu Saheb Temak by right of survivorship as  it was the ancestral property of the family. However, after the death of  Yashwant Rao Temak, the husband of Janki Bai,  the land was  mutated in revenue records in her favour. But Bapu Sahab Temak  claimed the property by way of survivorship after the death of  his  brother, Yashwant Rao Temak, challenging the order passed by the  Tahasildar for mutating the property in the revenue records in favour  of Janki Bai, the wife of late Yashwant Rao Temak. An order was  passed on 17.4.1962 in his favour but that order was set aside by  order dated 22.7.1963 and the mutation effected in favour of Janki  Bai was affirmed.  That decision was challenged before the Revenue  Board unsuccessfully. Notwithstanding this, the rights of Janki Bai  were matured and affirmed in Civil Suit No.25 of 1962.  In that suit it  was held that Bapu  Saheb Temak was only the manager of the  property and he had no title, therefore, he could only collect the rent  as a manager of the property. Meanwhile,  this property in question  was sold by Janki Bai to one Dharmawati Bai by sale deed  executed  on 10.1.1963 and this was upheld by the High Court.  

5.              So far as the present suit is concerned, this was wholly

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misconceived and engineered by the plaintiff on the basis of the so  called family settlement. In fact, the rights of the parties having  matured in civil suit No.25 of 1962 wherein the High Court took the  view in second appeal that the position of Bapusaheb Temak was  nothing but the manager and in that connection they relied on the  Regency order dated 17.11.1931 and indicated that Bapusaheb  Temak  was never appointed as a manager and therefore, so far as  the right of Smt. Janki Bai was concerned, the same stood affirmed.  The subsequent suit brought by Shiv Singh was totally misconceived  as on the basis of the so called family settlement once the rights of  the parties have matured by operation of the decision of the High  Court,  there was no occasion for the present suit being filed on the  basis of the so called family settlement. When the land does not  belong to Bapusaheb Temak or his son, Shiv Singh, there was no  occasion for the so called family settlement. Family settlement could  only be if one has lawful right over that property and then alone family  settlement could be executed. When there was no lawful rights of the  parties over the property, there was no occasion for the suit being  filed on that basis. Therefore, in our opinion, the view taken by the  High Court appears to be correct that Janki Bai was the owner of the  property. When Bapusaheb Temak was only the manager of the  property and the real owner was Janki Bai,  the suit filed by Shiv  Singh was rightly dismissed in First Appeal by the High Court setting  aside the judgment and decree passed by the trial court.

6.              Consequently, we are of opinion that the view taken by  learned Single Judge of the High Court is correct and there is no  merit in this appeal and the same is dismissed. No order as to costs.