This second appeal has been filed by plaintiffs challenging the

judgment and decree dated 23.01.1995 passed by District Judge, East

Nimar Khandwa in Civil Appeal no.11-A/90, reversing the judgment and

decree dated 20.09.1990 passed by I Civil Judge Class-I, Khandwa in

Civil Suit no.11-A/1964.

2.

In short the facts are that, original plaintiff Bhagchand (the

appellants are his descendants) instituted a suit for declaration of title and

permanent injunction mainly against the original defendant 1-Seth

Champalal (due to his death and there being no LR, his name was deleted

vide order dtd. 9.2.1983) and defendant 2-Dayaram (the respondents 1(a)

to (j) are his descendants) with regard to a house situated in Mohalla Gol

Bazar, Khandwa as mentioned in schedule-A to the plaint. Later on

Mangilal (the respondents 2(A) to (E) are his descendants) and Chhotibai

(since deceased) were also made party to the suit as defendants 3-4. It is

alleged that Tularam (father of plaintiff-Bhagchand) was owner of the

house and in the year 1928 he was declared insolvent and in the

insolvency proceedings, the suit house was sold in auction on 22.01.1932

which was finalized in the name of defendant 1-Seth Champalal for

Rs.235/-, who was maternal uncle (mama) of the plaintiff-Bhagchand. In

pursuance thereof sale certificate was issued on 09.08.1941 (Ex.D-2/1) in

the name of Seth Champalal and it was agreed between Seth Champalal

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and Tularam that he would try to pay consideration amount of auction

sale and as such he was permitted to continue in occupation of the house

and thereafter, plaintiff’s mother paid amount to Seth Champalal and in

turn he never took possession of the house. The plaintiff in para 5 of the

plaint also took plea of adverse possession over the suit house. It is

alleged that the defendant 2-Dayaram claiming himself to be owner and

landlord of the house on the basis of sale deed dated 17.03.1962 (Ex.D-

3/4), allegedly executed by defendants 3-4 Mangilal and Chhotibai (who

were LRs of Seth Heeralal) filed suit for eviction (C.S no.85-A/63 and

86-A/1963) against the plaintiff and his tenant in the Court of II Civil

Judge Class-II, Khandwa, and in turn the plaintiff instituted the present

suit on 03.04.1964 for declaration of title and permanent injunction

restraining the defendant 2-Dayaram from proceeding with the suits for

eviction with regard to suit house. On inter alia allegations the suit was

filed.

3.

The defendant 1-Seth Champalal appeared and filed written

statement denying the plaint allegations and contended that Tularam

mortgaged the house in question vide mortgage deed dated 02.12.1922 in

favour of Smt. Gangabai for consideration of Rs.2,500/-. Later on

Gangabai and her son Radhakishan assigned the said mortgage to Seth

Heeralal and Seth Madholal (both sons of Seth Laxminarayan Agrawal)

for consideration of Rs.4,000/- by registered deed dated 17.07.1931 and

original mortgage deed was handed over to Seth Heeralal-Madholal. It is

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contended that he (Seth Champalal) made bid in auction sale on behalf of

Seth Heeralal- Madholal for Rs.325/- in which he was benamidar and

Seth Heeralal-Madholal were real purchasers and they obtained

possession of house upon confirmation of sale and became full owner

thereof. It is further contended that from the date of confirmation of sale

i.e. from the year 1932, Seth Heeralal-Madholal were in possession of the

house and plaintiff’s father Tularam went to live in rented house and died

there. It is alleged that upon partition on 10.09.1950 amongst Seth

Heeralal and heirs of Seth Madholal, the suit house fell in the share of

Heeralal vide registered partition deed, resultantly the plaintiff and one

tenant-Gopikishan became his tenants on ground floor and first floor.

Seth Heeralal expired in the year 1953 leaving behind his son Seth

Mangilal and widow Smt. Chhotibai. It is further contended that on

17.03.1962 Seth Mangilal and Chhotibai sold the house to defendant