SURESH CHANDRA TRIPATHI Vs. MANOHAR LAL KANODIA

JUDGEMENT

(1.) In this appeal on 22.2.2012 following order was passed:

(2.) House No. 85/74 was in dispute in O.S. No. 127 of 1949. The present dispute relates to part of the said house. Dhan Rajee defendant in O.S. No. 127 of 1949 died in the year 1968. She was survived by two sons Indra Prasad and Ram Subhag, However in the appeal which had been filed by Dhan Rajee (Civil Appeal No. 69 of 1963) against decree passed by the trial court only Indra Prasad was substituted at the place of Dhan Rajee but not Ram Subhag the other son. Ram Subhag filed O.S. No. 113 of 1989 against Indra Prasad which was decreed through compromise on 3.2.1993 and the portion of the house in dispute fell in the share of Ram Subhag. The case of the appellant is that he was inducted in a part of house No. 85/74 as tenant by Indra Prasad. Further, case is that after the compromise decree dated 3.2.1993 passed in O.S. No. 113 of 1989 in between the two brothers, the said portion fell in the share of Ram Subhag hence the appellant on 13.7.1999 through registered sale deed purchased the said portion (already in his tenancy occupation) from heirs of Ram Subhag as he had died. It was further contended, and it was the main point, by the appellant that decree passed in O.S. No. 127 of 1949 was not binding upon Ram Subhag as he was not impleaded therein and as appellant had purchased the property from the heirs of Ram Subhag after his death hence was neither Ram Subhag nor his heirs nor the appellant bound by the decree passed in O.S. No. 127 of 1949. Both the courts below have rightly rejected this contention.

(3.) Ram Subhag never cared to get himself impleaded in O.S. No. 127 of 1949 after death of his mother Dhan Rajee, who was defendant therein. Even in the appeal filed against the decree passed in the said suit he did not get himself impleaded/substituted. On the doctrine of sufficient representation of the estate Ram Subhag is as much bound by the decree passed in the O.S. No. 127 of 1949 as his brother Indra Prasad who was substituted in the suit at place of Dhan Rajee. Moreover, if it is held that Ram Subhag had no concern with the house in dispute and it was Indra Prasad who alone inherited the house from his mother Dhan Rajee still appellant cannot any benefit. Both the brothers Ram Subhag and Indra Prasad got O.S. No. 113 of 1989 decreed through compromise on 3.2.1993. Accordingly, Ram Subhag got the property (house in dispute) from his brother Indra Prasad hence he cannot claim better right than Indra Prasad or any right independently of Indra Prasad.