LAWS(ALL)-1981-11-22

PERA KHATIKA Vs. LAL BEHARI

Decided On November 18, 1981
PERA KHATIKA Appellant
V/S
LAL BEHARI Respondents

JUDGEMENT

(1.) This is a defendants' second appeal against whom a decree for their ejectment from House No. B-26/24 situate in Mohalla Nawabganj in the city of Varanasi has been passed by the lower appellate court. The suit had been dismissed by the trial court.

(2.) The house belonged to Hiralal, the father of appellant Pera. One Dwarika Sahu obtained a decree for recovery of a sum of Rs. 254/- from Hiralal from the Court of Judge, Small Causes. This was on Apr. 14, 1951. An application for execution of the decree was made on Feb. 1. 1954 before the City Munsif, Varanasi which was registered as Execution Case No. 64 of 1954. The house was attached during execution proceedings on March 26, 1954 and put to auction sale on Nov. 19, 1954. The decree holder himself was the auction purchaser but since he did not deposit the purchase money within the prescribed period of limitation, the auction sale was cancelled on Dec. 17, 1954. Mean while, Section 42 of the Civil P. C. came to be amended with effect from NOV. 30 1954 by the U. P. Civil Laws (Reforms and Amendment) Act, 1954. The house was put to auction again in Execution Case No. 64 of 1954 on March 1, 1955 and was this time purchased by plaintiff-respondent Lal Behari for a sum of Rs. 500/-. The sale was confirmed on April 4, 1955 and a sale certificate prepared in favour of the purchaser, on May 26, 1955. The plaintiff sought to take possession of the house on July 16, 1955 by an application dated July 16, 1955 under Order 21 Rule 95 C. P. C. The application was dismissed in default of the plaintiff who then made a fresh application (No. 7 of 1955) and possession was delivered, according to the plaintiff, to him by the Kurk Amin on June 3, 1965. The appellants it is said, took back possession forcibly on July 19, 1965 so that according to the plaintiff, he had to file the present suit. The case, on the contrary, of the appellants was that Hira Lal had already died on Nov. 1, 1962 and the appellants, claiming to be in possession of the house in their own rights, had objected to the prayer of the plaintiff for being put into possession of the house. That objection was allowed on May 2, 1969. It is also their case that the plaintiff made another application for being put in possession of the house which was rejected on Dec. 13, 1971 on the ground that the decree could not be executed as its execution had become barred by limitation. An appeal against this order filed by the plaintiff was also dismissed by the District Judge on May 24, 1972. The case of the appellants was that they remained throughout in possession of the property in suit and the story about their having taken forcible possession from the plaintiff on July 19, 1965 was incorrect.

(3.) The suit, out of which arises the present appeal, was filed on May 31, 1966 inter alia for the relief of recovery of possession on the basis of the auction sale which was confirmed on April 4, 1955 in favour of the plaintiff.