Judgment ( 1. ) BEING aggrieved by the judgment-decree dated 14-9-88 passed by the District Judge, Balaghat in C. A. No. 12-A/86 affirming the judgment-decree dated 5-8-86 passed by the Civil Judge Class-I, Balaghat in C. S. No. 75-A/79 plaintiff/appellants have preferred this appeal under Section 100, CPC. ( 2. ) THE appeal has been heard on the following substantial questions of law: (a) Whether plaintiffs could sue for possession without claiming relief of cancellation of sale (Ex. D-2) ? (b) Whether on finding that suit lands were ancestral properly and in absence of finding that sale (Ex. D-2) was supported by legal necessity, the plaintiffs could be non-suited ? ( 3. ) LATE Mooka was recorded owner of suit land Khasra No. 128 area 0. 21, khasra No. 143 area 0. 79 acres Village Hirri, Tehsil and Distt. Balaghat. Late Mooka was survived by 2 sons late Dadu and late Kashiram. Late Dadu was survived by sons Gendalal and Kalicharan. The suit lands remained recorded jointly in the names of Gendalal, Kalicharan and Kashiram. Defendant/respondent Janmejay is son of Kashiram. Plaintiff/appellants are wife, sons and daughters of Janmejay. Since Gendalal, Kalicharan have sold their shares of ancestral lands inherited from late Mooka, to avoid any dispute in future, Gendalal, Kalicharan and Kashiram jointly executed registered sale deed dated 5-4-73 (Ex. D-1) in favour of defendant/respondent Janmejay. This sale deed (Ex. D-1) was nominal. The suit lands said to have been purchased vide registered sale deed (Ex. D-1) remained ancestral in the hands of defendant/respondent Janmejay. Defendant/respondent Janmejay being a man of infeeble mind did not cultivate and plaintiff/appellants remained in possession of suit lands. Defendant/respondent Abdul Gaffar on 25-10-77 forcibly harvested the crop sown by plaintiff/appellants. Therefore, plaintiff/appellants instituted C. S. No. 75-A/79 before the Civil Judge seeking relief of injunction and recovery of mesne profit. In C. S. No. 75-A/79 on an application under Order 39 Rules 1 and 2, CPC issuing injunction, the Civil Judge directed defendant/respondent Abdul Gaffar not to dispossess the plaintiff/appellants from the suit lands. However, on 15-6-78 defendant/respondent Abdul Gaffar by sowing forcibly, dispossessed plaintiff/appellants from the suit lands. Accordingly, amending the plaint relief of possession also has been claimed. The suit aforesaid was resisted by defendant/respondent Abdul Gaffar stating inter alia that the suit lands in the hands of defendant/respondent Janmejay were not ancestral. However, on 15-6-78 defendant/respondent Abdul Gaffar by sowing forcibly, dispossessed plaintiff/appellants from the suit lands. Accordingly, amending the plaint relief of possession also has been claimed. The suit aforesaid was resisted by defendant/respondent Abdul Gaffar stating inter alia that the suit lands in the hands of defendant/respondent Janmejay were not ancestral. The suit lands were purchased by him vide registered sale deed dated 5-4-73 (Ex. D-1 ). Defendant/ respondent Janmejay having received full amount of consideration executed a registered sale deed dated 24-5-77 (Ex. D-2 ). Since then he became owner in possession of suit lands. The Civil Judge in C. S. No. 75-A/79 vide judgment dated 5-8-86 held that on the basis of registered sale deed (Ex. D-1) the suit lands were purchased by defendant/respondent Janmejay. Further by executing registered sale deed (Ex. D-2) the suit lands were sold to defendant/respondent Abdul Gaffar. Accordingly, the suit seeking possession, injunction and recovery of mesne profit has been dismissed. Being aggrieved, plaintiff/appellants preferred C. A. No. 12-A/86 before the District Judge, Balaghat. The Court below vide impugned judgment dated 14-9-88 held that the suit lands in fact were inherited by late Dadu and late Kashiram from their father late Mooka. Late Dadu was survived by Gendalal and Kalicharan. Lands of Khata of late Mooka remained jointly recorded in the names of late Dadu, Kashiram. On the death of Dadu, his sons Gendalal, Kalicharan and late Kashiram remained recorded owners of suit lands. Since late Dadu and his sons Gendalal, Kalicharan have sold parts of lands equal to their 1/2 share, to avoid any dispute in future, Gendalal, Kalicharan and late Kashiram jointly executed a registered sale deed dated 5-4-73 (Ex. D-1) in the name of defendant/respondent Janmejay son of Kashiram. Thereafter late Kashiram died. The sale deed dated 5-4-73 (Ex. D-1) was nominal without consideration, as such the Court below held that the suit lands in the hands of defendant/respondent Janmejay were ancestral. Defendant/respondent Janmejay personally was not in possession and plaintiff/appellants being in possession cultivated the suit lands. Defendant/respondent Abdul Gaffar in the month of October, 1977 forcibly harvested the crop said to have been sown by plaintiff/appellants. Thereafter in the month of June, 1978 dispossessed them from the suit lands. In the circumstances, the Court below ought to have decreed the suit for possession, injunction and recovery of mesne profit. Defendant/respondent Abdul Gaffar in the month of October, 1977 forcibly harvested the crop said to have been sown by plaintiff/appellants. Thereafter in the month of June, 1978 dispossessed them from the suit lands. In the circumstances, the Court below ought to have decreed the suit for possession, injunction and recovery of mesne profit. Since plaintiff/appellants did not claim cancellation of sale deed dated 24-5-77 (Ex. D-2) said to have been executed by defendant/respondent Janmejay in favour of defendant/respondent Abdul Gaffar, dismissed the appeal. Being aggrieved, the plaintiff/appellants have preferred this appeal under Section 100, CPC. ( 4. ) IT is contended that plaintiff/appellants could sue for possession injunction without claiming relief of cancellation of sale deed dated 24-5-77 (Ex. D-2 ). The Court below having held that the suit lands were ancestral in the hands of defendant/respondent Janmejay in the absence of legal necessity for sale on the basis of deed (Ex. D-2) plaintiff/appellants could not be non-suited. ( 5. ) KALICHARAN (P. W. 4) has stated that the lands were inherited from the grand father late Mooka. On the death of late Dadu the lands were jointly cultivated by him, Gendalal, and late Kashiram. The lands remained recorded jointly in the names of Kalicharan (P. W. 4), Gendalal and late Kashiram lather of defendant/respondent Janmejay. Kalicharan (P. W. 4) has stated that since part of lands of share of himself and Gendalal was sold, to avoid any dispute in future. Kalicharan, Gendalal and late Kashiram jointly executed registered sale deed dated 5-4-73 (Ex. D-1) in favour of defendant/respondent Janmejay son of late Kashiram. The sale deed (Ex. D-1) was nominal and the character of suit lands remained that of ancestral in the hands of defendant/respondent Janmejay. Govind Lai (P. W. 6) is said to be the attesting witness of registered sale deed (Ex. D-l) this witness also has stated that vide registered deed (Ex. D-1) the suit lands were not sold to defendant/respondent Janmejay, in fact by this document title was conveyed to him by Gendalal, Kalicharan and late Kashiram. Tarachand (P. W. 1), Bhagwantgbai (P. W. 2), Atmaram (P. W. 3) also have stated that the registered sale deed/ (Ex. D-1) was nominal as such it was executed by Gendalal, Kalicharan and late Kashiram just to avoid any dispute that may arise in future between Gendalal, Kalicharan and late Kashiram father of defendant/respondent Janmejay. Tarachand (P. W. 1), Bhagwantgbai (P. W. 2), Atmaram (P. W. 3) also have stated that the registered sale deed/ (Ex. D-1) was nominal as such it was executed by Gendalal, Kalicharan and late Kashiram just to avoid any dispute that may arise in future between Gendalal, Kalicharan and late Kashiram father of defendant/respondent Janmejay. Hardly there is any evidence from the side of defendant/respondent Abdul Gaffar to state otherwise. Abdul Gaffar (D. W. 1) on the basis of registered sale deed (Ex. D-1) stated that defendant/respondent Janmejay was owner of suit lands Analyzing the evidence the Court below rightly held that late Mooka was owner of agricultural lands. These lands were inherited by late Dadu, late Kashiram, Half of the agricultural lands of Khata of late Mooka since was sold by Dadu and his sons Gendalal, Kalicharan, remaining portion of lands, i. e. , the suit lands being of the share of late Kashiram was cultivated by him. However, the suit lands remained recorded jointly in the names of Gendalal, Kalicharan sons of late Dadu and late Kashiram. Soon before the death as per wish of late Kashiram, Gendalal, Kalicharan and late Kashiram jointly executed a nominal sale deed dated 5-4-73 (Ex. D-l) in favour of defendant/respondent Janmejay, son of late Kashiram only to avoid any dispute in future. As such character of suit lands in the hands of defendant/respondent Janmejay was that of ancestral. ( 6. ) BHAGWANTABAI (P. W. 2) has stated that suit lands remained in her possession and were cultivated. The crop sown by her was forcibly harvested by defendant/respondent Abdul Gaffar. Therefore, she instituted the suit. In spite of an order of injunction being passed, she was dispossessed by defendant/respondent Abdul Gaffar. This statement of Bhagwantabai (P. W. 2) is fully supported by Tarachand (P. W. 1), Atmaram (P. W. 3), Kalicharan (P. W. 4), Tukaram (P. W. 5 ). The Court below discarding the statement of Abdul Gaffar (D. W. 1), rightly relying upon the statements aforesaid of plaintiff/appellants witnesses held that defendant/respondent Abdul Gaffar during the pendency of suit for injunction dispossessed the plaintiff/appellants. ( 7. ) ABDUL Gaffar (D. W. 1) although has stated that defendant/respondent was required to liquidate the liability of debt and to meet other necessary expenditure of purchasing other suitable lands had sold the suit lands to him vide registered sale deed (Ex. ( 7. ) ABDUL Gaffar (D. W. 1) although has stated that defendant/respondent was required to liquidate the liability of debt and to meet other necessary expenditure of purchasing other suitable lands had sold the suit lands to him vide registered sale deed (Ex. D-2), however, no further evidence has been adduced to substantiate that the sale deed (Ex. D-2) was executed for any legal necessity of the joint Hindu family consisting of defendant/respondent Janmejay and plaintiff/appellants. It is contended that in the circumstances, the Court below ought to have decreed the suit for possession, injunction and recovery of mesne profit. With reference to Chikkathamaiah and Ors. v. Chikkahulchiah and Ors. , AIR 1977 Karnataka 99, the Court below held that plaintiff/appellants ought to have sought the relief for cancellation of sale deed dated 24-5-77 (Ex. D-2) said to have been executed by defendant/respondent Janmejay in favour of defendant/respondent Abdul Gaffar. In the absence of such a relief being claimed plaintiff/appellants suit was not maintainable. In Chikkathamaiah and Ors. v. Chikkahutchiah (supra), it has been held : "where the father of joint Hindu family consisting of himself and his sons executed a sale deed relating to ancestral property in favour of A and after the fathers death the sons claiming title from their father brought a suit against A for declaration of title and permanent injunction relating to the property on the ground that the sale deed was obtained by A by undue influence and fraud and was not binding on them, it was held that the suit was not maintainable unless the plaintiffs sought for cancellation of the sale deed even though they were not parties to it. " ( 8. ) PLAINTIFF/appellants case is that suit lands in the hands of defendant/respondent Janmejay were ancestral. However, it remained in exclusive possession of appellants. The crop was sown by plaintiff/appellant Bhagwantabai and defendant/respondent Abdul Gaffar forcibly harvested the same in the month of October, 1977. Further in the month of June, 1978, defendant/respondent Abdul Gaffar dispossessed the plaintiff/appellants from the suit lands. On these facts plaintiff/appellants were not required to seek relief of cancellation of sale deed dated 25-4-77 (Ex. D-2) the suit simplicitor for possession, injunction and recovery of mesne profit was maintainable. The Court below erred in affirming the judgment-decree passed by the Civil Judge in C. S. No. 75-A/79. ( 9. On these facts plaintiff/appellants were not required to seek relief of cancellation of sale deed dated 25-4-77 (Ex. D-2) the suit simplicitor for possession, injunction and recovery of mesne profit was maintainable. The Court below erred in affirming the judgment-decree passed by the Civil Judge in C. S. No. 75-A/79. ( 9. ) CONSEQUENTLY, the appeal is allowed. On the basis of findings recorded by the Courts below the suit seeking relief of possession, injunction and recovery of mesne profit ought to have been decreed. C. S. No. 75-A/79 stands decreed as under : (1) Defendant/respondent Abdul Gaffar shall deliver possession of suit lands to the plaintiff/appellants. (2) Defendant/respondent Abdul Gaffar shall not create any interference in plaintiff/appellants possession of suit lands. (3) Plaintiff/appellants are entitled to seek mesne profit from defendant/respondent Abdul Gaffar for the period suit lands remained in his possession-cultivation. The Executing Court shall determine the annual amount of mesne profit. Defendant/respondent Abdul Gaffar accordingly shall pay the amount so calculated to the plaintiff/respondents. (4) Defendant/respondent Abdul Gaffar shall bear his cost and pay the costs of plaintiff/appellants. (5) Defendant/respondent Janmejay shall bear his costs. Counsel fees as per rules or certificate (whichever is less ).