TIRATH KUMAR MISHRA, Vs. RAVI SHANKAR

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this plaintiff's second appeal is as under: ­

(2.) The plaintiff filed a suit stating inter ­alia that the suit property bearing House No. 415 situated at Nayapara, Raipur was purchased by his father Brijmohan from Smt. Idanbi, Mohammed Yakub, Mohammed Khalil and Mohammed Habib vide registered sale deed dated 29. 1. 1946 (Ex. P ­1) and since he was a need of money, therefore, he sold some portion of the suit house to one Smt. Rajrani and rest of the portion was in his possession. His father died in the year 1961 ­ 62 and his brother came in possession of the suit house and started paying tax. It was further pleaded that the plaintiff and the defendant are relatives and the defendant was working in Municipal Council, therefore, he needed house for residential purpose and looking to the difficulty of the defendant, the plaintiff gave one room admeasuring 88 foot situated at first floor to the defendant as licensee and he is residing in the said room. The defendant while taking room as licensee gave assurance that he will vacate the room whenever the plaintiff require the suit room. It is submitted that the plaintiff retired from service in the year 1970 ­71 and he needed the suit property as his sons were married and therefore, the room was required and he requested the defendant to hand over the possession, leading to filing of the instant suit for possession based on title.

(3.) The defendant filed his written statement and denied the averments made in the plaint stating inter ­alia that the plaintiff and the defendant are members of joint Hindu family property and it was purchased by Baijnath Mishra out of income of joint Hindu family and father of the plaintiff was only residing with Baijnath Mishra to look after the religious activity of the temple and has never resided in the suit house. It was further pleaded that two more house were purchased by Baijnath Mishra out of income of joint Hindu family in the name of his nephews namely Jamuna Prasad and Brijmohan Prasad (father of the plaintiff) and since then father of the defendant was residing in those house as joint owner because it was joint Hindu family property and no partition of entire properties of Baijnath Mishra had taken place, therefore, the suit property cannot be considered as self ­acquired property of the plaintiff. Counter ­claim was also made by the defendant holding that the suit property was purchased by grandfather of the plaintiff and the defendant namely Baijnath Mishra out of joint Hindu family income, therefore, the defendant has right over the suit property. It was also pleaded that the plaintiff be precluded from evicting the defendant from the suit property and decree of permanent injunction be granted in his favour and the suit property be declared as joint Hindu family property.