The validity of a patta and its impact on the acquisition of Bhumiswami rights under the M. P. Land Revenue Code, 1959.

A. K. Shrivastava, J.

1. The plaintiff feeling aggrieved by the judgment and decree dated 15-4-2000 passed by learned District Judge Guna dismissing the Appeal No. 18-A/96 of plaintiff and thereby affirming the judgment and decree passed by learned Third Civil Judge Class II, Guna in Civil Suit No. 142-A/92, dismissing her suit on 20-12-1995, has filed this second appeal.

2. The plaintiff filed a suit for declaration of Bhumiswami rights and for grant of injunction in respect of certain agricultural land which is the subject-matter of suit and the description whereof has been mentioned in the plaint. Later-on, the plaintiff by amending the relief clause also sought a decree of possession, in case, she is not found in possession of the suit property as well as for a decree of mesne profit at the rate of Rs. 2000/- per annum.

3. In brief the case of plaintiff is that one Bhanwar Lal Lodha was the Bhumiswami of the suit property and vide registered sale deed dated 16-3-1981 for a consideration of Rs. 5,000/-, he sold the suit property to the plaintiff and also delivered possession to her. It has also been pleaded by the plaintiff that after purchasing the suit property her name has also been mutated in the revenue record. By amendment, it has also been pleaded by the plaintiff that defendant No. 1-Lakhmichand and defendant No. 3-Kammoda on 11-5-1981 executed an affidavit before the Notary, Guna admitted the right of the plaintiff in the suit property. However, later-on the defendants started disowning the right of plaintiff and also created hindrance when the plaintiff started to cultivate the land. Hence, a suit for declaration of Bhumiswami rights and injunction has been filed with a further prayer that in case it is found that plaintiff is not in possession, the possession of suit property be also delivered to her.

4. Defendants No. 1 and 3 namely Lakhmichand and Kammoda filed a joint written statement, while defendants No. 2 and 4 namely Lala and Ram Prasad filed separate written statement. In their written statement defendants inter alia pleaded that on the date of execution of the sale deed, Bhanwarlal who is the vendor of the plaintiff, was not having any right to sale the suit property, and therefore, even if plaintiff proves that he bought the suit property from Bhanwarlal by executing a sale-deed, it would not confer any right in her. It has also been pleaded by the defendants that the possession of the suit property was never delivered to plaintiff by Bhanwarlal. According to the defendants neither plaintiff is having any right nor she is having possession on the suit property, hence it is prayed that suit be dismissed.

5. By amending the written statement, the factum of execution of the affidavit on 11-5-1981 by defendants-Lakhmichand and Kammoda in favour of plaintiff admitting her right has not been specifically denied, but vaguely and evasively it has been pleaded in para 2-A of the written statement that defendants No. 1 and 3 namely Lakhmichand and Kammoda did not remember that in what context they executed the said affidavit and what was the reason. Further in this para it has been pleaded by these defendants that defendants are illiterate and they have not executed any affidavit after understanding its contents. It has also been pleaded that by executing an affidavit in favour of a person the title would not be conferred in him.

6. In para 5 of the written statement it has been pleaded by defendants No. 1 and 3 that the possession on the suit property is of defendants with effect from 10-5-1970 as on this date Bhanwarlal executed a patta in favour of defendant No. 3-Kammoda and he (defendant No. 3-Kammoda) is the Shikmi Krishak (lessee/tenant) of Bhumiswami Bhanwarlal and since then continuously the defendants are cultivating the land and are also paying the land revenue. Further it has been pleaded in para 5 of the written statement that the defendants have acquired Bhumiswami rights under section 189 and 19