CHITHARU Vs. SITA RAM AND ORS

JUDGEMENT

(1.) The present second appeal at the instance of Defendant No. 2, Chitharu in Suit No. 192 of 1968, arises against the judgment and decree dated 23-8-1986 in Civil Appeal No. 28 of 1986, which was directed against the judgment and decree dated 4-12-1985 in the aforesaid suit, was admitted by this Court on the following questions of law:

(2.) Since the controversy involved in the present second appeal is in a narrow compass, therefore, it is not necessary to give all the details. The brief facts of the case are that the house in dispute originally was the property belonging to joint Hindu family constituted of Sri Pashupati Nath Gupta, the Plaintiff and Defendants No. 2 to 7 which Sri Sri Nath Gupta, Defendant No. 2, was the Karta. who, in the capacity of Karta, let out the house in dispute to the Defendant No. I. There had been a partition in the joint Hindu family by means of a suit No. 302 of 1963 filed by the Defendant No. 3, Sri Brij Nath Gupta, which was decided in terms of a compromise on 17-11-1965. The house in dispute came to the share of Sri Pashupati Nath Gupta who became its exclusive owner since then. Thereafter the Defendant No. 2, Sri Sri Nath Gupta, filed Suit No. 381 of 1966 against Defendant No. 1, Chitharu, for recovery of arrears of rent on the allegation that he let out only the Chabutara to him. In this suit, Pashupati Nath Gupta and Defendants No. 3 to 7 made application for their impleadment, which was rejected This suit was dismissed by the trial court on 5-5-1967, but was decreed in Civil Appeal No. 59 of 1967 on 8-12-1967 by the appellate court for recovery of Rs. 360-00 Sri Sri Nath Gupta, the decree holder, put the decree in execution for realisation of the decretal amount. Sri Sri Nath Gupta, the Plaintiff in the suit giving rise to the present second appeal, stated that the decree in the suit was collusive and fraudulent and was not binding on him and the Defendants No. 3 to 7. Sri Pashupati Nath Gupta and Defendants No. 3 to 7 served a notice, subsequent to the aforesaid compromise decree, upon the Defendant No. 1 on 26-12-1965 demanding their shares of rent in respect of the house in dispute till 16-11-1965 and thereafter full rent to Pashupati Nath Gupta as a result of the aforesaid compromise. The notice was not complied with and the Defendant No. 1 falsely set up a claim proclaiming himself to be the owner of the house in suit describing himself as a leasee only of the Chabutara, over which the house was constructed. Sri Pasbupathi Nath Gupta thereafter served another notice dated 11-4 1966 upon the Defendant no demanding arrears of rent and the costs of the notice and terminating his tenancy on the expiry of 30 days of the service of the notice This notice was served upon the Defendant No. 1 on 12-4-1966 but he failed to comply with the notice and committed wilful default, which led to the filing of the said suit by Sri Pashupati Nath Gupta. Subsequently, Sri Pashupathi Nath Gupta transferred the house in favour of Sita Ram and Ghanshyam through a registered sale deed dated 10-2-1976, who stepped into his shoes and were entitled to the relief claimed by him as they got themselves impleaded in his place. In the suit, different sets of written statement were filed. The written statement filed by Defendant No. 1, inter alia, denied the title of the Plaintiff, Sri Pashupati Nath Gupta. The written statement filed by the Defendant No. 2 supported the case of the Defendants No. 1 The written statement filed on behalf of the Defendants No. 3, 4 and 6 admitted the case of the Plaintiff. The written statement filed on behalf of the Defendants No. 5 and 7 also admitted the case of the Plaintiff.

(3.) The trial court on the pleadings of the parties framed issues. Subsequently only Defendant No. 1 contested the suit and rest of the Defendants did not appear on the date of hearing and the suit proceeded ex parte against rest of the Defendants.