ASHARFI DEVI Vs. PREM CHAND

JUDGEMENT

(1.) THIS second appeal arises out of a suit filed by the plaintiff respondents Nos. 1 and 2 for recovery of possession of a house situate in the town of Bahraich and for damages. The house admittedly belonged to one Barati Lal who was the great grandfather of the plaintiff-appellants. According to the plaintiffs, it was a self-acquired property of Barati Lal and he had full disposing power over it, Barati Lal had dedicated this house along with some other pro perty to Sri Thakurji Maharaj, the presid ing deity of a temple built by him, under his wills dated 23-5-1908 and 12-10-1927, Barati Lal remained the Sarverakar till his death and after him his son Jot Prasad became the Serverkar. Jot Prasad died on 17-3-1936 and after him the plaintiffs became Sarverakars. This house had however been usufructuarily mortgaged by Jot Prasad to Hanoman Prasad defendant-respondent No. 3 by means of a mortgage deed dated 6-8- 1935. Subsequently Jot Prasad's widow Smt. Bittan Devi defendant-respondent No. 7 sold the equity of redemption to Lakhpat Rai defendant appellant (who died durring the pendency of appeal and is now re presented by Smt. Asharfl Devi and others) under a sale deed dated 7-10-1948. This sale deed was executed in favour of Lakhpat Rai as well as Ghasi Ram defendant-respondent No. 4 but the latter subsequently transferred his in terest in the house to Lakhpat Rai. Lakhpat Rai filed a suit for redemption of the mortgage against Hanoman Prasad. That suit was decreed and a final decree for redemption was passed on 17-9-1951 and in execution of that decree possession was delivered to Lakhpat Rai on 26-4-1952. The plaintiffs alleged that they came to know about these transactions only after this delivery of possession had been made to Lakhpat Rai. Lakhpat Rai sub sequently made a mortgage of this pro perty in favour of Rajmal defendant-res pondent No. 5 who is now in possession of this property. According to the plaintiffs neither Jot Prasad had any right to mort gage this property to Hanoman Prasad nor Jot Prasad's widow Smt. Bittan Devi could make a transfer of the equity of redemption to Lakhpat Rai. However, since Lakhpat Rai had redeemed the mortgage to Hanoman Prasad after mak ing payment of Rupees 500/- to him, the plaintiffs were prepared to pay this amount to Lakhpat Rai which they want ed to get adjusted against the mesne pro fits payable by Lakhpat Rai in respect of this property from 26-4- 1952 when he entered in wrongful possession of it. The plaintiffs as Sarverakars filed the suit for recovery of possession of the property against all these persons in the court of Munsif on 17-4-1961. The plaint was however returned by that Court on ground of jurisdiction and then it was presented before the Civil Judge on 15-1-1962. The plaintiffs had also set up an alternative case that if the property is not held to be a wakf pro perty, they were entitled to its possession as heir of Barati Lal and Jot Prasad.

(2.) THE suit was contested mainly by Lakhpat Rai and Rajmal. They plead ed inter alia that the property in suit was an ancestral property in the hands of Barati Lal and he could not make any valid wakf of this property, that the wakf, if any, made by him was not acted upon and that after the death of Barati Lal his heirs had been dealing with the property included in the alleged wakf as their personal property. By means of a parti tion between the two sons of Barati Lal the house in suit was allotted exclusive ly to Jot prasad who validly mortgaged it to Hanoman Prasad. After the death of Jot Prasad his widow Smt. Bittan Devi succeeded to the property as the sole heir of Jot Prasad. She validly sold her equity of redemption in this house to Lakhpat Rai by means of a sale deed dated 7-10-1948 and the vendees entered in possession of the property after this sale-deed. The property was then re-, deemed by them from the previous morfe gagee Hanoman Prasad through a re demption suit and thereafter they got actual possession over the property. la any case, the vendees were bona fide transferees for valuable consideration without any notice of the alleged wakf and as such they are protected by Sec tion 41 of the Transfer of Property Act. It was further pleaded that the plaintiffs had no possession over the property with in twelve years of the suit and theii; claim was barred by limitation.

(3.) IN this appeal the learned counsel for the appellants seriously challenged the last two findings of the lower Courts regarding the protection not being available to the appellants under Section 41 of the Transfer of Property Act and the suit being within time.