L HANUMAN PERSHAD Vs. ROOP NARAIN

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the High Court (Grover and Kapur JJ.) dismissing an appeal filed under cl. 10 of the Letters Patent against the judgment of Falshaw J. (as he then was) . In order to appreciate the points raised before us, it is necessary to give certain facts.

(2.) This appeal arises out of a suit filed by Roop Narain respondent before us, against Hanuman Pershad, appellant before us, and Bishan Chand another respondent before us. The suit was filed for a declaration that the plaintiff was in adverse possession as an owner for over twelve years of the double storey house No. 2171 and 2171/1 as entered in the Register of the Municipal Committee, Delhi, and that his adverse possession has ripened into title since long ago and therefore defendant. No. 1, Hanuman Pershad, cannot evict the plaintiff from the same in execution of his decree dated Dec. 15, 1953, against defendant No. 2, Bishan Chand, obtained from the Court or Shri Nathu Ram Sharma, Sub Judge I st Class, Delhi, and a permanent injunction be issued restraining defendant No. 1 from evicting the Plaintiff in execution of that decree. He set out the previous history of the litigation between the parties. It appears that defendant No. 1, Hanuman Pershad, filed a suit against the plaintiff and defendant No. 2 (Suit No. 302 of 27-6-1941) for Rs. 180/- as rent in the Court of Shri Harish Chander Mital. Addl. Judge Small Cause Court., Delhi. In the plaint it was asserted by Hanuman Pershad that Bishan Chand took the aforesaid house on rent from the plaintiff at Rs. 10/- p. m. and got Roop Narain, his real brother, settled in it. Since Bishan Chand took this house on rent and Roop Narain resided in it, both of them have been made parties in the case. In that suit. Roop Narain filed a written statement and stated that he had been in adverse possession of the house in question from the time of his father for a period aggregating to about 35 years. He further stated that he was not a tenant of Bishan Chand or any other person and he did not hold or ever held the house in dispute from or through Bishan Chand nor has Bishan Chand anything to do with the house or with Roop Narain's possession. Bishan Chand also filed a written statement and stated:"This defendant never took the house in question on lease or otherwise from the plaintiff nor has he given it to defendant No. 2. This defendant has nothing to do whatever with the house in question." On 7-5-1942, Shri Harish Chandra Mital. Addl. Judge, Small Cause Court Delhi, dismissed the suit. We may mention that both Bishan Chard and Roop Narain appeared as witnesses in the case. Bishan Chand supported the written statement he gave but in cross-examination admitted that he did not know who owned the house in dispute and he and defendant No. 2 both owned the neighboring house in which he was living and Roop Narain also used a part of that house. Roop Narain stated that he was living in the house in dispute ever since his adoption by Sheo Nath Rai, which took place about 25 years ago. He was then aged 29. He explained the cheque Ex. P. W. 1/1 by saying that this was given by him to Hanuman Pershad as he needed money and it was not bank time and as the plaintiff was a respectable person in his neighborhood, he got it cashed from him. He admitted in cross-examination that he had no dealings with the plaintiff and added that the plaintiff did not cash the cheques as a regular business. He stated that he cashed the cheque at the house of the plaintiff. He admitted that he never paid house tax for the house in dispute but had been paying tax for the adjoining house in which he and Bishan Chand both lived. He further stated that they both paid house tax which was shared by both.

(3.) A revision was filed in the High Court and the High Court (Monroe, J.) accepted the revision and observed: