SHIV PRAKASH Vs. KRISHNA KUMAR VERMA

JUDGEMENT

(1.) Heard Learned Counsel for the defendants appellants at the admission stage. Learned Counsel for the respondent No. 1 who has filed caveat is also present.

(2.) Both the appellants are real brothers and sons of respondent No. 2, Hori Lal Verma. Plaintiff respondent No. 1, Krishna Kumar Verma is real brother of Hori Lal Verma. Krishna Kumar instituted O.S. No. 1073 of 2001 against both the appellants and their father Hori Lal who was defendant No. 3 in the suit. Civil Judge, Senior Division Kanpur Nagar dismissed the suit of the plaintiff and decreed the counter claim of defendant appellant No. 1 Shiv Prakash against plaintiff and defendant No. 3, i.e. against his uncle and father and declared him to be co-owner and co-sharer in House No. 107/199, Nehru Nagar, Kanpur Nagar. Plaintiff respondent No. 1 filed Civil Appeal No. 136 of 2009 against the said judgment and decree. A.D. J. Court No. 10, Kanpur Nagar through judgment and decree dated 17.5.2011 allowed the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff against defendant Nos. 1 and 2 (present appellants) and directed the defendants to vacate the portion of the house in dispute shown by red colour in the plaint map (part of first floor) within three months and handover the possession of the same to the plaintiff. Rs. 1000/- were awarded as damages for use and occupation and Rs. 500/- per month as pendente lite/future damages. Counter claim was also rejected. Defendant Nos. 1 and 2 have filed this second appeal against the judgment and decree passed by the lower appellate Court.

(3.) The house in dispute was purchased by Smt. Ram Lali, mother of Hori Lal and Krishna Kumar (grand-mother of the appellants). Sri Bal Govind was husband of Smt. Ram Lali, i.e. grand-father of appellants. The case set up by Shiv Prakash, appellant No. 1 was that the house had been purchased by Bal Govind benami in the name his wife Ram Lali from Joint Hindu Family Fund hence he (Appellant No. 1) had birth right in the said house. The case set up in the plaint was that Smt. Ram Lali was sole exclusive owner of half eastern portion of the house in dispute as she had purchased it for Rs. 1000/- through registered sale-deed dated 22.7.1949; thereafter her name was mutated in the Nagar Mahapalika records and thereafter the western half portion of the house was numbered as 107/199-A. Smt. Ram Lali died on 1.8.1978 and after her death her husband Sri Bal Govind and both of her sons, i.e. Hori Lal and Krishna Kumar became co-owners of the house in dispute and after the death of Bal Govind both the sons i.e. Hori Lal and Krishna Kumar became co-owners and their names were mutated in the Nagar Mahapalika records. It was further pleaded in the plaint that oral partition took place between Hori Lal and Krishna Kumar on 2.6.2001 regarding which a memorandum was prepared on 1.9.2001 according to which ground floor came in the share of Hori Lal, first floor fell in the share of Krishna Kumar plaintiff and that he gave a part of the first floor as licence to defendant No. 1, Shiv Prakash. (Third and fourth floors were divided in equal specified shares between Hori Lal and Krishna Kumar) Defendant appellant No. 2, Vijay Singh filed written statement stating that his father and uncle were in collusion. He supported the case of defendant No. 1 and stated that his father and uncle wanted to illegally dispossess defendant No. 1. However he accepted the case taken in the plaint that defendant No. 1 had gone to Haidergarh, District Barabanki, the house of his wife. He further stated that Shiv Prakash had executed power of attorney in his (defendant appellant No. 2) favour.