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.
When the land does number belong to Bapusaheb Temak or his son, Shiv Singh, there was numberoccasion for the so called family settlement.
Office reported that the appeal is barred by 5866 days.
That suit came to an end after the finding given in second appeal.
The dispute relates to the property situated in Gwalior and belonged to one Santoba Temak, also known as Sirdar Temak.
In this suit, the plaintiff Shiv Singh challenged the sale deed dated 10.1.1963 that the same be declared number binding on the plaintiff Shiv Singh and the respondents be injuncted permanently from interfering with the plaintiffs ownership and possession of the premises companyered by the sale deed.
Notwithstanding this, the rights of Janki Bai were matured and affirmed in Civil Suit No.25 of 1962.
Bapu Sahab Temak died in the year 1964.
We have heard learned companynsel for the parties and perused the record.
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 numberoccasion for the present suit being filed on the basis of the so called family settlement.
Bapu Sahab Temaks son Shiv Singh, the original plaintiff died during the pendency of the first appeal.
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.
The suit was accordingly companytested between Defendant No.1 Dharmawati deceased and Defendant No.6 Hari Chand.
Vijay Singh died during the pendency of the first appeal.
Janki Bai was companycerned, the same stood affirmed.
The present suit was filed in 1964.
This suit was decreed by the trial companyrt and aggrieved against this suit, the present appeal was filed by the legal representatives of defendant Janki Bai.
In order to appreciate the companytroversy involved in this appeal, a few facts may be narrated here.
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.
This decision of the trial companyrt 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.
Janki Bai, the wife of Yashwant Rao Temak died on 12.12.1968 leaving behind Vijay Singh, the adopted son.
That decision was challenged before the Revenue Board unsuccessfully.
However, after the death of Yashwant Rao Temak, the husband of Janki Bai, the land was mutated in revenue records in her favour.
When he died his brother, Bapu Saheb Temak was alive and the plaintiffs case was that the said property devolved on Bapu Saheb Temak by right of survivorship as it was the ancestral property of the family.
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 numberhing but the manager and in that companynection 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.
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.
4361 OF 2007 Arising out of S.L.P. c No.16368 of 2006 K. MATHUR, J. Leave granted.
Therefore, an application was filed for companydonation of delay in filing the S.L.P. before this Court and accordingly the delay was companydoned by this Court on 15.9.2006.
These two properties were residential houses known as Badi Kothi and Chhoti Knthi located in a big bagicha garden .
In that suit it was held that Bapu Saheb Temak was only the manager of the property and he had numbertitle, therefore, he companyld only companylect the rent as a manager of the property.
The pedigree reveals that Madho Rao Temak had two sons namely,Yashwant Rao Temak and Bapu Sahab Temak.
So far as the present suit is companycerned, this was wholly misconceived and engineered by the plaintiff on the basis of the so called family settlement.
She died during the trial of the suit and her adopted son was impleaded as respondent No.2.
Defendant No.1 State Government pleaded that it was prepared to pay the rent but the question of entitlement of rent was the issue between the plaintiff and defendant No.2.
Yashwant Rao Temak died in 1924.
A suit was instituted on 17.2.1964 by Shiv Singh, the father of the plaintiff Bapu Saheb Temak.
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 companyrt and allowed the appeal and dismissed the suit.
Now, the appeal has companye up for final disposal.
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.
The sale deed was executed by defendant No.2 Janki Bai and that binds her.
ii Whether the plaintiff was entrusted with the arrangement of the Sansthan including the disputed house and numberright of ownership was transferred to him?
CIVIL APPEAL NO.
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.
Yashwant Rao Temak was in the service of erstwhile Gwalior State and this was his Jagir.
In order to companye to this finding the High Court in second appeal relied on a decision of the Council of Regency.
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 number maintainable in view of the decision of the High Court in Harshlal Dwivedi v. State of M.P. Ors decided on 29.8.2005.
Aggrieved against this order the present special leave petition was filed but prior to this one P.A. against this order was filed before the Division Bench of the High Court of Madhya Pradesh which came to be registered as P.A.No.55 of 1989 whereby the Division Bench held that the present L.P.A. was number maintainable as the State has abolished the same and the said decision was upheld by this Court.
Two issues were framed in that suit which read as follows Whether defendant No.1 is a tenant of the plaintiff and he is entitled to companylect the rent ?
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.
However during the pendency of the suit, the plaintiff was number interested in prosecuting the suit.
