BHAWANI PRASAD Vs. RAM DEO

JUDGEMENT

(1.) THE dispute in this case relates to a zamindari grove which formerly belonged to one Data Din. After his death it was inherited by his two sons Gokul Prasad defendant No. 2, and Ram Prasad. It appears that both these brothers were separated Hindus, Ram Prasad died issueless and his 1/2 share in the grove was inherited by his brother Gokul Prasad. Gokul Prasad had two sons named Bhawani Prasad, who is the plaintiff-appellant before us, and Ram Baran who was impleaded as defendant No. 3 in the suit but who died subsequently without leaving any widow or issue and whose property was inherited by his father Gokul Prasad. At the time of the abolition of zamindari this grove was held by Gokul Prasad and his sons. Gokul Prasad held 1/2 share in this grove as his individual property which he had inherited from his brother Ram Prasad, while the other half was held by him as co-parcenary property belonging to the joint Hindu family consisting of himself and his two sons. If the partition were to be effective on the date preceding the abolition of zamindari, Gokul Prasad and his two sons would have got equal share in the ancestral half share of this grove. In other words, the plaintiff would get 1/6th share in this entire grove.

(2.) AFTER the abolition of zamindari, Gokul Prasad and his sons acquired Bhumidhari rights in this grove under Section 18 of U. P. Zamindari Abolition and Land Reforms Act. While Gokul Prasad and his two sons were living as members of the joint Hindu family. Gokul Prasad sold this entire grove to Ram Deo defendant No. 1. Thereupon Bhawani Prasad plaintiff filed a suit challenging the sale deed on various grounds. The trial Court found that the sale deed executed by Gokul Prasad was not for legal necessity and so it was not binding on the plaintiff to the extent of his 1/6th share. The suit was decreed accordingly to the extent of 1/6th share.

(3.) AFTER remand when the case was reheard by the same Munsif the defendant' counsel again conceded that legal necessity had not been proved and he did not press the issue on that point. So the learned Munsif went into other disputed question in the light of the directions given by the appellate court in its order of remand and thereafter he partly decreed the suit and partly dismissed it. This time the defendant went in appeal and on his behalf the finding on the question of legal necessity was also assailed. The appeal was heard by the same Civil Judge who had previously remanded the case and before whom it was admitted by the defendant' Counsel that legal necessity had not been proved from the evidence on record. But the Civil Judge was of the opinion that this question was a mixed question of law and fact and so the admission made by the defendant' Counsel was not binding on him. After that he reappraised the evidence and held that legal necessity had been proved.