RAM KISHAN Vs. RAM SARAN DESH PANDEY

JUDGEMENT

(1.) THIS is a second appeal against a decree and Judgment, dated 31-8-1985, of the VIII Additional District Judge. Meerut allowing the appeal of the plaintiff-respondents, setting aside the judgment and decree of the trial court and decreeing the suit for possession and injunction.

(2.) SUIT No. 406 of 1976 was filed by the plaintiff-respondent no. 1 alleging that by means of a family partition evidenced by a partition deed dated 17-8 1939 between Murari Lal (original defendant no. 3), his wife Smt Birma Devi and son Ram Saran Das the plaintiff, the Joint family property was partitioned- The property mentioned in lot in the partition deed went to the share of Murari Lal. lot 2 to the share of Birma Devi and lot 3 to the share of the plaintiff Smt. Birma Devi according to the deed of partition was to have only limited estate to the property in lot 2. Amongst other properties house nos 10 to 13 and 13 A were allotted In the share of Murari Lal The said Murari Lal sold the aforesaid house nos. 10 to 13 and 13A as described in para 6 of the plaint in favour of the defendants no. I and 2 by registered sale deed dated 21st January, 1966. Adjacent towards west of property no. 13A sold by Murari Lal is situated garden which was allotted to the share of Smt. Birma Devi. In a portion of the garden, adjacent to the well, in the year 1948 the plaintiff had built a stair case, a room and a tin shed. Taking advantage of his influence over Smt. Birma Devi, Murari Lal opened a door, of his premises no. 13A which was a garrage, towards the garden in the year 1952, a notice regarding which was given to him by the plaintiff. Smt. Birma Devi died on 25-2-1976 whereafter the properties in lot 2 reverted to the plaintiff and Murari Lal as full owners. While executing the sale deed dated 21-1-1966 Murari Lal with the connivance of Birma Devi made a wrong description of the boundaries and thus included the stair case, room and tin-shed constructed by the plaintiffs in the property transferred. The consent, if any, of Birma Devi however, did not have any effect on the rights of the plaintiff as she had only a limited estate. The plaintiff filed SUIT No. 535 of 1966 before City Munsif, Meerut. The suit, however, was not pursued because the property was to revert back to the plaintiff after the death of Birma Devi and it was dismissed for default on 24-1-1967. The defendants no. 1 and 2. on the strength of the said sale deed filed an ejectment suit in the court of Judge Small Causes stating defendant no. 4 Kaushlya Devi to be a tenant of a room situate in the 'baagicha'. In the said suit the plaintiff applied for being impleaded as a party but the said application was dismissed. After the death of Birma Devi the possession of the defendants no. 1 and 2 over the property in dispute is that of tresspasser and they have no right to remain in possession over the same, to realise its rent or to have egress and ingress into the garden through the intervening doors. Since despite the request and demand of the plaintiffs the defendants 1 and 2 failed to hand over possession of the property in dispute and to refrain from realising rent, the suit was filed for possession and for permanent injunction.

(3.) WITH these findings the first appellate court allowed the appeal and reversing the decree of the trial court, decreed the plaintiff's suit for possession and injunction.