EKADASHI Vs. GANGA

JUDGEMENT

(1.) This is a defendant's second appeal from the decree of the Court of the IInd Additional District Judge, Varanasi in Civil Appeal No. 300 of 1969 arising from the decree of the Court of the 1st Additional Munsif Varanasi in Suit No. 79 of 1967. The matter relates to a house No. C--27/130 of Mohalla Jagatganj, Varanasi. The relief claimed in the suit was a decree for possession over the house by ejectment of defendants Nos. 1 to 4 with the declaration that the plaintiffs are the owners of the entire house, and for recovery of Rs. 360/- as mesne profits for three years before the institution of the suit and pen-dente lite and future at the rate of Rs. 10/-per month. The suit was instituted on 30th January, 1967. There are four plaintiffs namely, plaintiff No. 1 Smt. Chameli Devi, Plaintiff No. 2 Smt. Dharem Sheela, Plaintiff No. 3 Smt. Hiramani and plaintiff No. 4 Ganga and there are five defendants, namely defendant No. 1 Ekadashi, defendant No. 2 Ganesh, defendant No. 3 Smt. Khajanawa defendant No. 4 Ram Bachan and defendant No. 5 Mangroo. The first three plaintiffs are the daughters-in-law of the fifth defendant Mangroo and transferees of a 1/2 share in the house from Sukhdeo who is the nephew of the first defendant (brother's son of Ekadashi), having purchased the same on 11th November, 1963. The fourth plaintiff is a transferee of a 1/2 portion of the house from Mangroo, who had purchased it in execution of a money decree passed in his favour by the Court of Small Causes, Varanasi, in suit No. 534 of 1951 at. two auction sales, one for 1/4th share of Ekadashi, the first defendant, on 30th April, 1954 and the other for 1/4th share of Ganesh, the second defendant, on 28th April, 1955, in the proceedings for execution of the said decree of the Small Cause Court taken in the Court of Munsif City Varanasi.

(2.) Having got into possession of the 1/2 share of the house in the said execution proceedings, Mangroo agreed on 15th May, 1956 to sell that 1/2 share to Ekadashi, Ganesh and Smt. Khajanawa defendants Nos. 1, 2 and 3 for Rs. 800/-out of which Rs. 200/- were paid the same day and the balance of Rs. 600/- was agreed to be paid in monthly instalments by 15th May 1958. The agreement between the parties was that in case the amount was paid, Mangroo would transfer his 1/2 share in the house to Ekadashi, Ganesh and Smt. Khajanawa, but in case there was default the agreement shall be deemed to have been cancelled and Ekadashi, Ganesh and Smt. Khajanawa would not be entitled to refund of any part of the amount paid by them. A rent note agreeing to pay Rs. 5/- per month as rent for the 1/2 share portion of the house, was also said to have been executed by Ekadashi, Ganesh and Smt. Khajanawa in favour of Mangroo.

(3.) Although the present second appeal is directed only from the decree of the lower appellate court in Civil Appeal No. 300 of 1969 arising from suit No. 79 of 1967, the judgment of the lower appellate Court shows that there was another suit being suit No. 272 of 1966 of the Court of the City Munsif Varanasi that had been filed by Ekadashi against Mangaroo in which Ganga Prasad, Ganesh and Smt. Khajanawa were pro forma defendants, for specific performance of the agreement dated 15th May, 1956 for the sale of the 1/2 share in the house that was entered into as aforesaid by Mangaroo. A claim for the refund of the amount of Rs. 800/- was made in the alternative in that suit. Both the suits were tried together. The trial Court decreed Ekadashi's suit for specific performance on payment of Rs. 210/- which was found to be the balance of the consideration still due. The suit for ejectment and mesne profits was decreed in part, that is to say, in respect of the 1/2 share of plaintiffs Nos. 1, 2 and 3 that had been purchased by them from Sukhdeo. The decree for mesne profits was also passed at the rate of Rs. 5/- per month, that is 1/2 of the rate at which the mesne profits were claimed.