CHET SINGH Vs. SHASHI SHANKER PATHAK

JUDGEMENT

(1.) This is defendant's second appeal against the judgment and decree dated 29-11-1975 of the then IVth Additional District Judge Varanasi dismissing the Ist appeal, and confirming the judgment and decree of the trial court whereby the plaintiff's suit for possession was decreed. The suit was filed by late plaintiff Chandra Shekhar Shastri whose legal representatives have now been brought on record, against the defendants with allegations that he had purchased O-16 decimals area out of plot No. 29, village Khajuri Pargana Shivpur District Varanasi along with a room situate therein by means of a sale deed dated 7-2-1966 executed by one Behari s/o Mangroo. The area of plot No. 29 is 19 decimals. It was originally recorded as old Banjer of the Zamindar and is now in the shape of Abadi within Municipal limits of Varanasi. In a portion of this plot one Ghissu s/o Darshan had constructed Shiwala and one Kashi a pucca well. The well does not stand now. In a portion of this plot there is a room constructed by Mangroo s/o Ghissu. The said Mangroo has been in adverse possession over this plot since quite some time and perfected title as a tenant. After his death his son Behari inherited the same and remained in possession. Kashi referred to above was not the grand father of Mangroo, although a statement to that effect was made by Mangroo in the revenue court to save himself from ejectment in a suit under S. 180 U.P. Tenancy Act filed by the Zamindar. The defendants who have no concern with the family of Mangroo or Behari unauthorisedly interfered with the plaintiffs possession hence proceedings under S. 145, Cr. P.C. were started in which the Magistrate in a summary manner held the defendants to be in possession and released the property in their favour. Accordingly it has given rise to the suit for ejectment and damages.

(2.) The defendants in their written statement denied the contentions of the plaintiff and pleaded that the defendants and Mangroo hailed from a common ancestor as per following pedigree : He pleaded that plot No. 29 is the ancestral property of the Behari and the defendants 1 and 2 Ram Nath and Brij Lal, since the time of common ancestor Kashi. There was a well at the time of Kashi in this place which by lapse of time was filled up and the defendant No. 1 constructed a room on its site. The said room had not been constructed by Behari, a temple constructed by Ghissu also exists in this plot. Mangroo being eldest amongst his brothers, his name was recorded in representative capacity in the revenue papers. Mangroo, Behari, Sita Ram and Kalloo mentioned in the aforesaid pedigree abandoned their residence and property in village Khajuri and thereafter defendants alone are in possession over the property in suit. The sale deed set up by the plaintiff is void and illegal as it has not been executed by Behari and was not acted upon. In any case Behari had no right exclusively over the said properties. The possession of the defendants being lawful they are not liable to be ejected. The suit is barred by limitation and is not cognisable by the Civil Courts.

(3.) The trial court came to the conclusion that the property in suit was the exclusive property of Mangroo whose name alone was recorded over the same in the revenue papers. The defendants 'contention that this plot is their ancestral property is not correct. Behari, the son of Mangroo inherited this property after his father's death and transferred the same by sale deed dated 7-2-1966 in favour of the plaintiff. The plot in question having acquired the character of abadi since quite long time, the suit in respect of the same is cognizable by Civil Courts, it is not barred by limitation and defendants 1 and 3 along with their licensee, the defendant No. 2 Mahesh, are liable to be evicted. He accordingly decreed the suit.