DEVI PRASAD Vs. SMT. JANAK DULARI AND ORS.

JUDGEMENT

(1.) THIS Second Appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and order dated 15 -12 -1992, passed by III Additional District Judge, Dehradun, in Civil Appeal No. 10 of 1992, whereby the judgment and decree dated 10 -12 -1991, passed by the trial court (Civil Judge, Dehradun), in Original Suit No. 534 of 1990, dismissing the suit, is affirmed.

(2.) HEARD learned Counsel for the parties and perused the lower court record.

(3.) DEFENDANT No. 1 Jagat Prasad (since deceased) the main contesting Defendant, in his written statement, has denied the plaint allegations and pleaded that Plaintiff has no share in the property in suit. In the additional pleas it is stated that sale deed executed in the year 1948 by Mr. C.A. Wilson transferring the property in suit in the name of Baroo Mai and Inder Sain was a benami transaction and it was Defendant No. 1, who infact, paid the consideration and purchased the property. It is further pleaded by this Defendant that it is the Defendant No. 1, who paid all the taxes of the property in suit and spent money in maintaining the property. It is further pleaded by Defendant Jagat Prasad that when the property was set to be auctioned in the decree passed in favour of Punjab and Sindh Bank in suit of 1957, it was this answering Defendant, who paid the decretal amount and got released the property from attachment. It is further pleaded that name of answering Defendant Jagat Prasad was entered as owner in the Municipal record in which property in suit is shown as property No. 163 /1, Rajpur Road, Dehradun. A legal plea is also raised by Defendant No. 1 in his written statement that the suit is barred by principal of res judicata, as the rights between the parties has been finally determined in a decree passed in Original Suit No. 370 of 1984. In the written statement of Defendant No. 2 Smt. Dayawati also, it is pleaded that the owner of the property in suit was only Defendant No. 1 Jagat Prasad and none else. The share of the Plaintiff is denied by this Defendant. However, Radha Kishan (Defendant No. 5), Sushil Kumar (Defendant No. 6) and Jai Prakash (Defendant No. 10) filed their joint written statement, in which most of the allegations in the plaint are admitted. It is also admitted by these three Defendants that Plaintiff has 1/6th share in the property.