RAM PRASAD Vs. CHHAJJU

JUDGEMENT

(1.) This is a defendants' appeal arising out of suit No. 308 of 1950 of the Court of Munsif Muzaffarnagar.

(2.) The suit was filed by one Chhajju who purchased a house for a sum of Rs. 400/- under a sale dead date 1-7-1949 from Baldewa, defendant NO. 1. Baldewa and defendant No. 2, Mahu, were brothers, Mahu having died since then. The plaintiff's contention was that although he purchased the house from defendant No. 1, his brother Mahu had taken possession over the same-and that Mahu was asserting that it was he who was the owner of the house and not Baldewa. The plaintiff therefore, filed the suit for recovery of possessor over the house and in the alternative he claimed refund of Rs. 400/- against defendant No. 1. Baldewa admitted that he had sold the house to the plaintiff. The real contest in the suit was between the plaintiff and Mahu Mahu alleged that he was doing contract business at Jagadhri and had sent Rs. 1440/- from there to his brother Baldewa at different times for purchase of a house for him and that this house had been purchasel by Bal-dewa from one Piarey Lal for him, though he got the sale deed executed in his own favour. Mahu's contention, therefore, was that Baldewa was a "Benamidar" and he himself was the real purchaser under the sale deed. It appears that sometime in 1949 Baldewa filed a suit for possession in respect of this house against Mahu, but this suit was dismissed for default of parties. Mahu, therefore, alleged that Baldewal's suit against him having been dismissed, he could not claim any title to the-house thereafter, nor could his transferee the present plaintiff. It was further alleged that the plaintiff purchased the house from Baldewa during the pendency of the aforesaid suit and that, therefore, the transfer in his, favour was invalid even on that account. Another plea raised by Mahu was that during the pendency of the suit between him and Baldewa, there was a Panchayat iin respect of this very dispute and the Panchayat decided that he, i. e, Mahu, should retain the house. Mahu further alleged that he had spent about Rs. 200/- in making, improvements in the house believing that he was the owner of the house and that in any case the suit could not be decreed unless he was compensated to that ex-tent.

(3.) The Munsif held that Baldewa was a mere Be-namidar, the real purchaser under the sale deed being Mahu. The sale deed in favour of the plaintiff was held to have been executed during the pendency of the previous litigation between Batdewa and Mahu. It was, therefore, held to be ineffective the plaintiff having been heid not to be a purchaser in good faith. A plea under section 41 of the Transfer of Property Act was raised oil behalf of the plaintiff, but it was decided against him. Mahu was also found to have spent Rs. 2OO/- in making the additional constructions in the house. As a result of these findings the suit was dismissed against Mahu, but was decreed for the recovery of Rs. 400/- the amount of consideration paid by the plaintiff, against Baldewa.