DEOTA PRASAD Vs. TRIBHUWAN

JUDGEMENT

(1.) THIS is plaintiff's appeal arising out of a suit filed by Deota Prasad in which a decree for possession over the house and the land in suit was claimed. By way of damages for use and occupation a decree for recovery of Rs. 720/- was also prayed for. The plaintiff's case was that the house in dispute was purchased by Kashi Pd. the father of the plaintiff under sale deed dated 24-8-1943, from one Mahadeo. The consideration for the sale was Rs. 2300/ -. The plaintiff claims to be in possession over the said house since then. In regard to the land shown by letters Aa Ba Sa Da which is adjacent to the house in suit, was it was maintained that it was taken by Kashi Pd on Patta from Deara Estate in the year, 1953 and since then he became owner in possession thereof. Plaintiff's father has let out the house in suit and till his death in 1959 it remained in occupation of the tenants. Even after the death of Kashi Prasad the house remained in occupation of the tenants. The plaintiff's father died on 6-6-1959, when he was a minor and his mother is an illiterate pardahnashin lady who had no capacity to understand the legal transactions. The plaintiff's uncle defendant No. 2 Rameshwar Prasad looked after his person and property after the death of Kashi Prasad. It is further alleged that after the death of Kashi Prasad the plaintiff inherited the house and the land in dispute as his sole heir and remained in possession till the accrual of the cause of action. About three years before the institution of the suit in the year 1969 defendant No. 1 Jhurhoo encroached the land in suit shown by letters Aa Ba Sa Da in the above sketch map and also asserted his ownership and possession over the house in suit. THIS amounted to dispossession of the plaintiff from the property in suit, hence the necessity for filing the suit arose.

(2.) FROM a perusal of the plaint if appears that initially the plaintiff based his claim on the basis of title of the house in dispute and claimed possession

(3.) THE plaintiff filed a replication in which it was stated that Triloki Nath and his sons did not constitute Joint Hindu family. THEre was no joint business and Kashi Prasad was not the Karta of the family. In paragraph 13 of the replication it was stated by the plaintiff that the house in dispute belonged exclusively to Kashi Prasad. It was maintained that the property was not liable to be partitioned. Since plaintiff was a minor at the time of his father's death defendant No. 2 after misrepresenting the facts pursuaded the mother of the plaintiff to put her signatures on a document which is said to be a deed of partition. According to the plaintiff the so-called partition deed was obtained by practicing fraud upon the mother of the plaintiff. According to the plaintiff his mother is a pardahnashin lady and was unable to understand the implications of the deed of partition. It is also maintained that since the house in dispute belonged exclusively to Kashi Prasad and after that his mother had no authority to agree to the partition of the house in suit.