Madhya Pradesh High Court
Gowardhan vs Ghasiram And Ors. on 6 September, 2001
Equivalent citations: AIR2002MP130, AIR 2002 MADHYA PRADESH 130, (2002) 1 MPLJ 200
JUDGMENT A.K. Gohil, J.
1. The appellant/defendant No. 1 Gowardhan has filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by the District Judge. Ujjain in Civil Appeal No. 5-A/74 on 11-12-1978 confirming the decree granted by the trial Court decreeing the suit of the Respondent/plaintiff Ghasiram and others vide judgment and decree dated 23-2-1974 passed by Second Civil Judge, Class-I. UJjain in Civil Suit No. 21-A/71.
2. This second appeal was admitted for final hearing on the following substantial questions of law :--
(1) Whether the Court below erred in holding that Daula as the predecessor-in-title of the appellant Gowardhan was not the sub-tenant of Lachhlbai. Pannibai through whom the respondent Ghasiram claimed title to the suit land?
(2) Whether the sale effected by Lachhibal and the legal representatives of Pannibai in favour of respondent Ghasiram is hit by the doctrine of lis pendens?
(3) Whether the appellant was not given proper opportunity to lead evidence ?"
3. In order to appreciate the controversy between the parties, the following facts, in brief, are not in dispute that the suit land originally belonged to Lachhibal and Pannibai. The defendant No. 5 Rughnathsingh was legal representative of deceased Pannibai. Lachhlbai and Pannibai Instituted a case under Section 326 of Kanoon Mal Gwalior for recovery of possession of those lands from one Daula on the allegations that the said Daula had taken forcible possession of the suit lands. During the pendency of said case, Lachhibal and Pannlbai sought an interim possession under Section 328 of Kanoon Mal Gwallor from Daula on 20-4-1949 in pursuance of the order of Revenue Court dated 31-5-1948. Against that order Daula had filed a revision and had died during the pendency of the said revision. Gowardhan. appellant/ defendant No. 1 as legal representative of said Daula prosecuted the said revision but ultimately that revision was dismissed. The main case under Section 326 of Kanoon Mal Gwallor instituted by Lachhlbai and Pannlbai was dismissed in default on 7-7-1953 but Lachhlbai and Pannibai continued to remain in possession of the lands in suit as they had obtained Interim possession during the pendency of that case. Thereafter on 14-4-1954 appellant Gowardhan instituted proceedings for restitution and on 17-8-1966 the Collector directed the restitution of possession in favour of Gowardhan and on 19-1-1967 appellant Gowardhan obtained possession of land in suit.
4. During the pendency of restitution proceedings between 14-4-1954 and 19-1-1967, two events took place. The first was the defendants No. 2 to 4, who are legal representatives of Lachhibal, and defendant No. 5, who is legal representative of Pannlbai, executed a sale deed in favour of plaintiff Ghasiram on 23-5-1958 and had obtained possession in pursuance of the registered sale deed and as such he remained in possession till 19-1-1967 while Gowardhan obtained possession in the restitution proceedings. Thereafter defendants No. 2 to 5 filed a civil suit against appellant/defendant No. 1 Gowardhan for declaration of title. That suit was compromised on 11/12-1-1967 and in the said compromise defendants No. 2 to 5 conceded that Daula was Initially sub-tenant and as such his legal representative Gowardhan had acquired Bhumiswami right on coming in force of M.P. Land Revenue Code.
5. The present suit has been filed on 1-5-1967 by Respondent/plaintiff Ghasiram. His allegation is that he acquired title by obtaining registered sale-deed dated 23-5-1958 from defendants No. 2 to 5 and, therefore, the defendant No. 1 Gowardhan has no right, title or interest in the land in suit. He pleaded that compromise which took place between defendants No. 2 to 5 and defendant No. 1 in civil suit on 11/12-1-1967 was a collusive one and has been made with a view to defeat the right, title and Interest of the plaintiff. The appellant/defendant denied the execution of the registered sale-deed in favour of the plaintiff and alternatively submitted that execution of the sale deed could not confer any right and title on plaintiff because he himself acquired the rights of Bhumiswami in land in dispute. According to him he was legal representative of Daula being his grand-son and said Daula was sub-tenant prior to abolition of Jagirdari and as such he had acquired the rights of occupancy tenant and then rights of Bhumlswami in accordance with the provisions of Section 185 read with Section 190 of the M. P. Land Revenue Code. The defendants No. 2 to 5 admitted about the execution of the registered sale deed on 23-5-1958.
6. The trial Court has held that the defendant No. 1 had failed to prove that he was legal representative of Daula or that Daula was sub-tenant or that defendant No. 1 had acquired right of Bhumlswami in accordance with the provisions of Section 185 read with Section 190 of the M. P. Land Revenue Code and found that the plaintiff has proved that defendants No. 2 to 5 had executed a registered sale-deed on 23-5-1958 in his favour and on account of that sale deed the plaintiff acquired valid title in the suit land and the transaction between defendants No. 2 to 5 and plaintiff was not affected by the provisions of Section 52 of the Transfer of Property Act and the trial Court granted a decree for declaration to the effect that the plaintiff was the Bhumlswami of the suit land and the defendant No. 1 had no right, title or Interest in respect thereof. The trial Court has also granted a decree for possession against appellant/defendant No. 1.
7. The first appellate Court confirmed the judgment and decree granted by the trial Court for declaration and possession and dismissed the appeal of appellant/defendant No. 1. The first appellate Court considering the submissions of the learned counsel for appellant/defendant No. 1 categorically discussed the effect of the documents Exs. D/7 and D/8. It was held by the first appellate Court that Ex. D/7 is a certified copy of the order of Tehsildar dated 31-8-1965 in restitution proceedings instituted by defendant No. 1 against Lachhibai and defendant No, 5 for recovery of possession of lands in suit and it was found that there is nothing in this order which supports the contention that Daula was sub-tenant of Lachhibai and Pannibai. It was only held in that order that defendant No. 1 was legal representative of Daula and in that capacity was entitled to recover possession in restitution proceedings. It has been observed by the first appellate Court that the question whether Daula was really a sub-tenant or not or the question whether Daula had any legal right, title or interest in lands in suit or not, was the subject matter of enquiry or decision in the restitution proceedings. In the restitution proceedings only it was to be seen whether Daula had been dispossessed during the pendency of case instituted against him which was dismissed in default. The first appellate Court further observed that by order dated 17-8-1966 passed by Collector. Ex. D/2, in which it was expressly observed that the question of title of Daula was wholly irrelevant in the execution proceedings and that the only question in restitution proceedings was to restore possession of the party from whom possession has been taken away by the order of the Court. Thus nothing contained in Ex. D/7 which is in favour of the defendant No. 1. The first appellate Court while discussing the Ex. D/8. which is the certified copy of order dated 19-11-1965 passed by the Sub-Divisional Officer, Ujjain in appeal against the order Ex, D/7 of Tehsildar in which it was stated that Daula had obtained Patta in Samvat 2004 for the period of one year and that in Samvat 2005 Lachhibai and Pannibai Instituted a case under Section 326 of Kanoon Mal Gwalior. Therefore, it is clear that Daula had obtained Patta for one year in Samvat 2004 does not amount to any legal finding of the fact that Daula infact obtained a Patta in Samvat 2004 it was further held by the first appellate Court that no Patta has been produced at the trial of the present suit and no attempt was made to lead additional evidence by producing Patta before the first appellate Court. Therefore, it was held that there is no legal evidence in the present case to prove that Daula had any Patta in his favour for one year viz. Samvat 2004. It is thus not proved that Daula was sub-tenant. Since sub-tenancy of Daula has not been proved, there is no question of his acquiring rights of occupancy tenant followed by rights of Bhumlswami as laid in Section 185 and 190 of the M.P. Land Revenue Code. Therefore, it was held that the finding of the trial Court on this point is unassailable and must be confirmed.
8. Against the aforesaid Judgment and decree of confirmation of the trial Court judgment, the appellant/defendant has filed this second appeal before this Court which was admitted for final hearing on the aforesaid substantial questions of law.
9. I have heard Shri S. D. Sanghi, learned Senior Advocate instructed by Shri Iqbal Hussain, for appellant; Shri S. K. Shastri, learned counsel for Respondents; and perused the record.
10. The submission of Shri Sanghi, learned Senior Advocate for appellant is that sub-tenancy for Samvat 2004 (Year 1947) is proved by Ex. D/8 and at this stage he submitted that he has filed an application (I.A. No. 1553/79) under Order XLI Rule 27 of the Code for additional evidence with certain documents containing admissions of Lachhibai, original owner, and the same could not be filed earlier as Shri Chandmal Mehta was appearing on behalf of the appellant and, therefore, he prayed that this application be allowed. His further submission is that the effect of sub-tenancy of the year Samvat 2004 is that, on 2-10-1959 under Section 185 of the M. P. Land Revenue Code. 1959 the present appellant (Defendant No. 1) had become occupancy tenant and thereafter Bhumiswami and for that he placed reliance on a decision reported in AIR 1980 SC 449 : 1970 Revenue Nirnaya 113. It was further submitted by him that the decision of Revenue Court under Section 326 of the Kanoon Mal Gwalior would operate as res judicata and the alleged sale of suit land by Lachhibai and Rugnath on 23-5-1958 in favour of Ghasiram was hit by doctrine of lis pendense and, therefore, would be void against the present appellant (Defendant No. 1). His last submission was that no proper opportunity was given to the appellant to lead evidence.
11. In reply Shri Shastri, learned counsel for Respondent/plaintiff supported the Judgments and decree granted by both the Courts below. His further submission is that Question No. 1 whether a person is sub-tenant or not is a pure question of fact and this question of fact cannot be disturbed in second appeal and for that he placed reliance on a decision reported in AIR 1974 SC 280; 1984 MPWN 404, He further submitted that it was specifically pleaded in the written-statement that Daula was granted Patta for one year for the Samvat 2004 only and the place village Pawasa was Raiyatwari Village of the erstwhile Qwaltor State and in that village Ujjain Kanoon Raiyatwarl Riyasat Gwalior, Samvat 1974 was made applicable. In Kanoon Ralyatwarl, Shikmi is defined as the person who was taking the land on lease from the tenant enumerated in the Act, cultivated the land, agreed to pay rent and every tenant was given a right to cultivate the land personally or through a Shlkmi i.e. sub-tenant. The rights of a sub-tenant i.e. Shlkmi are nowhere defined in Kanoon Raiyatwari and there was no restriction over tenants to sub-let the land in question and, therefore his further submission was that the rights of a Shlkmi and their landlord were being governed by the terms of Patta and there was no legal protection to this Shlkmi i.e. subtenant by Kanoon Raiyatwari. His further submission was that the burden lies on a person who claims to be sub-tenant. His further submission was that Pannibai was widow, the terms of Patta expired on 30th June, 1948, much prior to coming into force of the Madhya Bharat Land Revenue, which came into force on 1-5-1950. In Madhya Bharat Land Revenue and Tenancy Act, there is a restriction on sub-letting the land and there was another Act namely Madhya Bharat Raiyatwari Sub-lessee Protection Act, 1955, which came into force on 19th October, 1955, in which rights of the sub-tenant were protected. The so called sub-tenant ought to make payment of rent to the landlord or to deposit it in the Court. The defendant/appellant neither pleaded nor proved the payment of rent or deposit of rent in Court. Moreso the documents filed by the appellant/defendant, Exs. D/11 to D/23, the name of sub-tenant does not appear in the Khasra entries. Therefore, by any documentary or oral evidence the appellant/ defendant No. 1 thus had failed to prove the sub-tenancy. His ultimate submission was that at the most he could be treated as trespasser and a trespasser does not acquire status of Pucca tenant and in support he relied on a decision reported in AIR 1970 SC 483. His submission was that the provisions of Section 52 of the Transfer of Property Act are not applicable as the restitution proceedings were not in the nature of suit. There was no adjudication of rights and, therefore, the sale is not affected by the principle of Lis-pendens. The ample opportunity of hearing was afforded to defendant No. 1 to lead evidence to prove his case from the very beginning and the documents which were produced never made out a case of sub-tenancy in favour of the appellant/ defendant. An application, I.A. No. 5, for production of documents was filed and allowed on 12-12-1972. I.A. No. 8 for marking of exhibit that too was allowed on 13-2-1974 and, therefore, the defendant had opportunity to lead evidence but he did not choose to lead the same and he himself had closed the case.
12. In reply of application under Order XLI Rule 27 of the Code, the submission of Shri Shastri is that the defendant had no knowledge that Daula was sub-tenant. Mere discovery does not entitle any party to lead evidence to reopen proceedings does not mean to fill up the lacuna and at the second appellate stage, the party cannot be permitted to lead evidence on factual aspects of the case and, therefore, prayed for the dismissal of this application as well as appeal.
13. Before adverting on the substantial questions of law framed in this appeal for consideration, the application. I.A. No. 1553/79, is to be decided which has been filed by the appellant under Order XLI Rule 27 of the Code for additional evidence with certain documents. Along with the application the appellant has filed certified copy of the application which was filed by Lachhibai and Pannibai before the Tehsildar, Ujjain under Section 326 of Kanoon Mal on 10-7-1948; and also certified copies of the statement dated 12-7-1948 of Lachhibai and Pannibai; and also the copy of reply filed by the appellant Daula dated 21-9-1948. In this connection documents Exs. D/7 and D/8 are already on record. Ex.D/7 is the copy of order dated 31-8-1965 passed by Tehsildar, Ujjain by which it was decided that possession be restituted in favour of Gowardhan who is the legal representative of Daula. Ex. D/8 is the copy of the order dated 19-11-1965 passed by Sub-Divisional Officer, Ujjain passed in appeal against the impugned order dated 31-8-1965 (Ex. D/7) by which appeal was allowed and case was remanded with a direction that the order should be passed after holding an enquiry in which it has come on record that the Patta was granted for a period of one year i.e. Samvat 2004. Ex. D/9 18 the copy of the order passed on 17-8-1068 by the Collector, District Ujjain in which the order passed by the Sub-Divisional Officer was set-aside and the order of Tehsildar dated 31-8-1966 was restored. Since the necessary documents to consider the question whether the Patta granted for a period of one year (Samvat 2004) creates any right in favour of the tenant/sub-tenant Daula or his predecessor is under consideration in this appeal and for that this Court has already framed a substantial question of law and the documents relating to the orders passed by the Revenue Courts are already on record, therefore, filing of these documents along with application under Order XLI Rule 27 after the adjudication of the suit between the parties which was originally filed on 22-3-1974 would be a futile exercise and will not be helpful to the appellant in any manner. Therefore, the aforesaid application (I.A. No. 1553/79) does not deserve to be allowed and accordingly the same is dismissed.
14. To decide the substantial questions of law as framed by this Court while admitting this appeal and with a view to decide the controversy between the parties it becomes necessary to decide that whether Daula as the predecessor-in-title of the appellant Gowardhan was sub-tenant of Lachhibai and Pannibai and on the basis of that sub-tenancy whether he acquired any right of Bhumtswami under Section 185 of the M.P. Land Revenue Code. Admittedly Patta was granted by Lachhibai and Pannibai for a period of one year in Samvat 2004 (1947). So the main question in this case is if the Patta was granted for a period of one year what right appellant/defendant No. 1 would get and whether on the basis of same can he be said to have acquired the rights of occupancy tenant or Bhumiswami right in the land in dispute.
15. Here it is to be mentioned that the trial Court decreed the suit in favour of the plaintiff and it was declared that the plaintiff is the owner and Bhumiswami of Survey No. 5/2 area 5 Bighas, Survey No. 14 area 19 Bighas and 6 Bighas 2 Biswas out of Survey No. 15, total area 30 Bighas 17 Biswas of Village Pawasa. Tehsll and District Ujjain and the defendant has no right, title and interest and a decree for possession was also granted, in the suit issue No. 10 it was framed whether the defendant No. 1 being heir of Daula had obtained rights of Bhumiswami in the suit lands by operation of law. On this issue the trial Court has held that the defendant No. 1 has adduced no evidence in this case but it was contended on behalf of defendant No. 1 that the order of restitution was made in defendant's favour because Daula was the sub-tenant and defendant No. 1 being is grand-son continued to be so and, therefore, by operation of law defendant No. 1 has become Bhumiswami. It was held by the trial Court that this contention cannot be accepted in view of the final order passed in restitution proceedings which is Ex. D/9. If we read Para No. 4 of the said order, the whole position would be crystal clear. By that order no rights were created and the defendant No. 1 has failed to produce any evidence about obtaining Bhumiswami rights in the suit lands and thus it was held that he had not obtained any rights of Bhumiswami by operation of law and the first appellate Court also found that in Ex. D/8, which is a certified copy of the order of Sub-Divisional Officer, the facts of the case that Daula obtained Patta in Samvat 2004 for one year and in Samvat 2005 Lachhibai and Pannibai instituted a case under Section 326 of Kanoon Mal Gwallor but no such Patta was produced at the trial of the suit and no attempt was also made to produce the same before the appellate Court. Therefore, it was held by the first appellate Court that defendant No. 1 has failed to prove that Daula was sub-tenant. Since sub-tenancy of Daula was not proved and, therefore, it was further held that in view of this there is no question of his acquiring rights of occupancy tenant followed by rights of Bhumiswami. As the learned counsel for the appellant has pointed out these documents. Exs. D/7 to D/9, in which the fact of grant of patta was mentioned in favour of Daula for a period of one year i.e. In Samvat 2004 (1947) even after this if we consider the arguments of the learned counsel for appellant that Patta was granted in favour of Daula, the predecessor of the appellant in Samvat 2004 for a period of one year and in Samvat 2005 Lachhibai and Pannibai had instituted a case under Section 326 of Kanoon Mal Gwalior for possession and if it is admittedly a fact on record for the purposes of deciding the rights of the appellant, final position emerges for consideration is that on the basis of the aforesaid Patta granted in favour of the appellant for a period of one year i.e. only for Samvat 2004 what right he would get under the law which was prevailing in the particular year. The learned counsel for the appellant could not point out any law prevailing at the relevant time which can grant a perpetual right in favour of the appellant on a grant of Patta for a period of one year. Both the Courts have held that copy of Patta was not produced nor its terms were produced and the learned counsel for the appellant has failed to show me that even on the basis of Exs. D/7 to D/9 Patta granted for a period of one year whether on that basis the appellant acquired Bhumiswami rights on 2-10-1959 when the M.P. Land Revenue Code, 1959 came in force. The learned counsel for appellant could not point out any Revenue Law prevailing in the relevant year of Samvat 2004 (1947) by which restrictions were imposed on giving the land on tenancy and also could not point out whether this one year tenancy has created any right in his favour in the relevant Revenue Laws. The Judgment of AIR 1980 SC 449 cited by the learned counsel for appellant is not helpful because in that case it has been held that the land was allotted for a period of one year for agricultural purposes but the defendant continued to hold land when M.P. Land Revenue Code came in force. But in this case it is not the factual position on record.
16. In the case of Gajraj Singh v. Jagat Singh, reported in 1970 Revenue Nirnaya 133 (HC) (DB), it was held that the Shikmi continuing to hold land till enforcement of the Code -- became occupancy tenant under the Code. Therefore, it was necessary for the appellant to plead and prove that he remained in possession continuously from Samvat 2004 (1947) till 2-10-1959, but the factual position in this case is not like this, The first appellate Court has observed that right from 20-4-1949 till 19-1-1967 the appellant remained out of possession. Therefore, it is very much clear that if a Patta was granted for a period of one year and which was not barred under the relevant laws after the expiry of period of Patta for possession and in pursuance of the order of Revenue Court dated 31-5-1948 the possession was obtained on 20-4-1949 may be wrongly as argued by appellant then it cannot be argued by the appellant that he continuously remained in possession up to 2-10-1959 to obtain a right of occupancy tenant in the land.
17. In support of decree granted by the two Courts below in favour of the Respondent/plaintiff, the submission of Shri Shastri, learned counsel for Respondent is that the Question No. 1 whether a person is sub-tenant or not is a question of fact and for that finding of facts has been confirmed by both the Courts and this question of fact cannot be disturbed in second appeal and he placed reliance on AIR 1974 SC 280. His further submission is that the village Pawasa where the land in dispute situated was a Raiyatwari village of the erstwhile Gwalior State and Kanoon Raiyatwari Riyasat Gwalior, Samvat 1974 was applicable. In Kanoon Raiyatwari, Shikmi is defined as the person who after taking the land on lease from the tenant, cultivated the land, agreed to pay rent and the rights of sub-tenant i.e. Shikmi were nowhere defined in Kanoon Raiyatwari and there was no restriction on tenants to sublet the land in question. Therefore, his submission was that whatever the rights were, they were governed by the terms of Patta and there was no protection or right extended by inheritance to the Shikmi and both the Courts have concurrently held and it was further submitted that both the Courts have held that neither existence of Patta nor the contents of Patta were produced and proved that the sub-tenant was regularly paying rent and it was the burden on the person who claims to be a sub-tenant. He further submitted that the terms of Patta expired on 30th June, 1948, much prior to coming into force of M. B. Land Revenue and Tenancy Act. which came into force on 1-5-1950 under which restrictions were imposed on subletting the land. Another Act was also enacted to protect the rights of sub-tenants i.e. Madhya Bharat Raiyatwari Sub-Lessee Protection Act, 1955. which came into force on 19th October, 1955 but on the date when these two Acts came into force, the appellant or his predecessor Daula was not in possession over the lands as a tenant/sub-tenant. Therefore, the appellant/defendant has thus failed to prove the case of sub-tenancy. Therefore, the Courts below have not committed any illegality in recording a finding that the appellant/defendant has not acquired any Bhumiswami rights.
18. Section 185 of the M.P. Land Revenue Code, 1959 categorised the persons who shall be recorded a occupancy tenant. Sub-Clause (ii) of Section 185 provides as under :--
"(ii) in the Madhya Bharat region--
(a) any Inam land as a tenant, or as a sub-tenant or as an ordinary tenant; or Explanation.-- The expression "Inam land" shall have the same meaning as assigned to it in the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act, 1954 (32 of 1954).
(b) any land as Ryotwari sub-lessee defined in the Madhya Bharat Ryotwari Sub Lessee Protection Act, 1955 (29 of 1955); or
(c) any Jagir land as defined in the Madhya Bharat Abolition of Jagirs Act, 1951 (28 of 1951), as a sub-tenant or as a tenant of a sub-tenant; or
(d) any land of a proprietor as defined in the Madhya Bharat Zamindarl Abolition Act, 1951 (13 of 1951). as a sub-tenant or as a tenant of a sub-tenant; or
19. As per the clear provisions of Section 185 of the M.P. Land Revenue Code. 1959 every person who at the coming into force of this Code holds any land as a sub-tenant or tenant, only such persons who continuously possess any such land as a tenant or subtenant on the commencement of the code are entitled under Section 185 (i), Sub-clause (ii) (a) to (d) to claim the status of occupency tenant and thereafter by virtue thereof acquired rights of Bhumiswami in accordance with provisions of Section 190 of the Code. Therefore, it was the burden on the appellant/ defendant to prove that on 2-10-1959 he was holding the land or was in possession as a tenant or sub-tenant provided either under the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act, 1954 or Madhya Bharat Ryotwari sub-lessee Protection Act, 1955 or Madhya Bharat Abolition of Jagirs Act, 1951 or Madhya Bharat Zammdari Abolition Act, 1951 and for that under Clause (ii) the words "actual possession of a sub-tenant is important." Obviously the intention of Section 185 (i) (ii) of the Code is to give occupancy rights to those who were holding lands when the Code came into force. In this case the rights of the appellant/defendant are not protected by Section 185 of the Code on the ground that even if it is taken into consideration that a Patta was granted for a period of one year in Samvat 2004 and in Samvat 2005 a suit was filed for taking possession back from the lessee Pattedar and when the appellant was not in possession in the land in dispute right from 30-6-1948 to 1967, he cannot claim any right on the basis of the aforesaid Patta for a period of one year.
20. In the case of Nathu Prasad v. Ranchhod Prasad. reported in AIR 1970 SC 483, it has been held as under :-- at Page 485 "A person inducted as a sub-lessee contrary to the provisions of Section 73 of Act 66 of 1950 did not therefore acquire any right under a contract of sub-letting, and his possession was not protected under Act 29 of 1955. Such a person is not a ryotwari sublessee as defined in Act 29 of 1955 and it is only on "Ryotwari sub-lessee" as defined in that Act that the right of occupancy tenant is conferred by Section 185 (i) (ii) (b)of the Madhya Pradesh Land Revenue Code."
21. Therefore, in view of the aforesaid discussions it is clear that the appellant/ defendant did not acquire any Bhumiswami rights under Section 185 of the Code as he was not holding the land and the lands in dispute did not remain in possession up to 2-10-1959 and even if Patta granted to the appellant for a period of one year and the restitution suit for possession was filed in Samvat 2005 and Interim possession was given to the Respondent under the relevant Laws which were prevalent in Samvat 2004 (1947) there was no bar for grant of Patta. Therefore, the appellant/defendant cannot claim the acquisition of occupancy rights in his favour and the matter stands concluded by the finding of facts recorded by the two Courts below and there cannot be a case regarding perfection of title in favour of Daula, predecessor of Gowardhan. Hence, the Question No. 1 answered accordingly.
22. As regards second question about the sale effected by Lachhibai and the legal representatives of Pannibai in favour of Respondent Ghasiram whether hit by doctrine of lis-pendens. For this question the submission of the learned counsel for appellant is that the alleged sale has taken place on 23-5-1958 during the pendency of the restitution proceedings before the Tehsildar which was filed on 14-4-1954, Section 52 of the Transfer of Property Act creates only a right to be enforced to avoid a transfer made pendente lite, because such transfers are not void but viodable and that too at the option of the affected party to the proceedings. The only effect of the doctrine of lis pendens on the sale transaction is to make it subject to the decree or order to be passed in the suit. The rights obtained by way of transfer during the pendency of suit are subservient to the rights of the transferor and binds the transferee in the same manner in which the transferor is. Therefore, as submitted by the learned counsel for appellant that by virtue of doctrine of lis pendens the sale effected would be void. As the two Courts have already held that the Respondent/plaintiff has acquired rights by virtue of sale-deed dated 23-5-1958. The first appellate Court has held that the proceedings under Section 326 of Kanoon Mal Gwalior is a summary proceedings for recovery of possession. The proceedings are analogus to proceedings under Section 9 of the Specific Relief Act. The questions of title are not decided in those proceedings. Any decision in that proceedings is subject to decision about title by Civil Court. Consequently the dismissal of the said proceedings in default would not affect the right, title or interest of any party in suit, because those rights are to be finally decided by the Civil Court.
23. The submission of the learned counsel for Respondent on this question was that the restitution proceedings which were filed for restoration of possession were not in the nature of suit and the restitution application was neither the continuation of the suit nor an application for execution of any decree. It was only a summary proceedings for restoration of possession and even then the proceedings under Section 326 of the Kanoon Mal Gwalior were not initiated by the appellant. Therefore, the sale-deed is not affected by doctrine of lis pendens. Therefore, this question is also answered accordingly.
24. The last substantial question of law which was framed at the time of admission of this appeal is whether proper opportunity to lead evidence was not given to the appellant. The submission of the learned counsel for appellant is that his application dated 13-2-1974 was not appreciated properly. The certain documents which were filed by the appellant were not exhibited and the record of the Revenue Court was not present, Therefore, appellant could not examine himself and for that opportunity to lead evidence in the interests of justice was not given and prayed for the remand of the case. The first appellate Court found that the order of the trial Court in refusing to adjourn the case for the purposes of marking the documents was perfectly legal and justified. The order-sheet dated 13-2-1964 indicates that on that day appellant/defendant No. 1 filed an application for marking certain documents as exhibit on the ground that they were public document. His prayer was allowed and exhibits were marked as pubUc document. The record of the Collector in restitution proceedings was not called because defendant No. 1 had not paid process fee for calling that record. It was not shown that as to how the record was relevant while the certified copy was already exhibited. The aforesaid adjournment was rightly refused as it was sought on frivolous ground. The defendant No. 1 himself declaring the evidence closed and had not led any evidence even after providing opportunity by the Court. Therefore, the grievance of the learned counsel for the appellant is wholly unjustified. Moreso, the suit remained pending before the trial Court from 1-5-1967 till 23-2-1974 and I have also gone through the order sheets. The case was listed for the purposes of evidence first time on 22-2-1972 and on 13-2-1974 defendant examined himself and closed the case. Right from 1967 the Court has already adjudicated the dispute between the parties on all the grounds and decided the same on the basis of oral and documentary evidence available on record. Therefore, in view of the aforesaid facts on record. I do not think that there is a case in favour of the appellant that proper opportunity of hearing or to lead evidence was not provided to him. In a litigation pending since 1967, I do not think that it is a fit case for remand on that ground. The substantial question of law framed by this Court at the time of admission of this appeal is answered accordingly.
25. In the result, this appeal falls and is hereby dismissed with no order as to costs throughout. A decree be drawn up accordingly. Record be returned.