SHAMBHOO Vs. RAMDEO

JUDGEMENT

(1.) This is a defendant's appeal against the judgment and decree dated 9-7-1977 passed by the learned District Judge Sultanpur whereby he dismissed the defendant's appeal and confirmed the decree passed by the trial court decreeing the plaintiff's suit with costs. Plaintiffs-respondents 1 and 2 are the sons of defendant-respondent 3. The defendant appellant who is a stranger to the family purchased the house in dispute from the plaintiffs' father through a sale deed. The plaintiffs came with the allegations that they together with their father Badri Prasad and uncles Mathura Prasad and Kedar Nath were living as members of the joint Hindu family having Gayadin, their grand-father, as the common ancestor. The house which is now in dispute and is detailed at the foot of the plaint was purchased by Gayadin and his three sons from the joint family funds although the sale deed was executed in favour of the three sons of Gayadin. The plaintiffs therefore, claimed to be coparceners and owners of the house as such along with other members of the family. Subsequently there had been a partition whereafter the plaintiffs lived jointly with their father while the other members, namely their uncles became separate. The house in question fell in the share of the plaintiffs and their father and they were accordingly continuing in possession thereof as owners. Defendant 1 who is now the appellant purchased the house in question from the plaintiffs' father although the latter had no right to transfer the same as it was their joint family property and the sale was made without legal necessity and was a fititious transaction without consideration. Their father was said to be a drunkard and a gambler who did not execute the sale deed while in sense. They accordingly claimed a decree for declaration that defendant 1 had no right or title to the house by virtue of the alleged sale-deed.

(2.) A decree for perpetual injunction was also claimed against defendant 1 restraining him from interfering in the plaintiffs' possession over the house or making any alterations in or damage to the premises.

(3.) The plaintiffs' father who is defendant 2 filed a written statement supporting the plaintiffs' case and admitting the pedigree set up by them. The claim was, however, resisted by defendant 1, the purchaser, whose contention was that the plaintiffs' father had a specified share in the house which he had sold to him. It was also contended that the house in question was purchased by the plaintiffs' father Badri Prasad and his brothers Mathura Prasad and Kedar Nath by a sale deed dated 24-12-1963 and thereafter there had been a partition amongst the three brothers in which the portion of the house sold to him was allotted to the plaintiffs' father. The sale deed obtained by him from the plaintiffs' father on 16-3-1970 was said to be for good consideration. It was denied that defendant 2 was a drunkard or gambler and the suit was said to be filed by the plaintiffs in collusion with their father. By an additional written statement, the defendant-appellant further contended that the house in question which he had purchased was the separate property of the plaintiffs' father Badri Prasad and in which the plaintiffs had no share or interest whatsoever. It was also contended that the house was purchased by Badri Prasad and his brother jointly but from their separate funds and that the family was not joint so as to give the plaintiffs a right either as coparceners or otherwise.