ANANT PRASAD Vs. RAJA RAM

JUDGEMENT

(1.) .

(2.) ONE Bhola Agrahari was the owner of the house which fell down and was not in existence at the time when the suit was filed on 28-2-1953. The house was situated on the Abadi land of village Khairabad which belonged to the Zamindar. On 21-12-1905 Bhola had gifted the house to Mahadeo. Kanhai and Swaroop, the sons of his daughter, Srimati Jaggo. 35 or 40 years before the filing of the suit Mahadeo and Kanhai died issueless. In the meantime, village Khairabad was included in the Municipality of Sitapur. On 6-11-1948 Ram Swaroop gifted the so-called house on the land to his sons and wife (Raja Ram and others, plaintiff respondents nos. 1 to 6). Ram Swaroop himself was plaintiff no. 7 but he died during the pendency of the second appeal. According to the plaint, the donee-sons of Ram Swaroop entered into possession so much so that the suit was filed by the sons alone; Ram Swaroop was added as plaintiff no. 7 on the suo motu orders of trial court on 7-7-1958.

(3.) THE defendant-appellant pleaded that Bhola Agrahari's house was in the Abadi site only in his capacity as Riyayah and by custom no Riyayah had a right to transfer the house without permission of the Zamindar. It was, therefore, said that gift by Bhola Agrahari to Ram Swaroop (dated 21-12-1905) and by Ram Swaroop to his sons (dated 6-11-1948) were void and illegal as the permission of the Zamindar had not been obtained. It was next said that atleast from 1941 the house on the land had fallen down and reduced to the condition of an open Ahata so that the site reverted to the Zamindar and Ram Swaroop and his sons not only abandoned the dilapidated house, but also abandoned the village and shifted to another village named Chhaoni Sadar where they have been living. THE land, according to the defendant-appellants, thus was only in the form of an open land without any structures with the result that on 5-1-1952 the owner-Zamindars Rahmat Husain etc. sold off the land by a registered sale deed to the defendant Srimati Kamla Devi. THEy said that they had been in possession and were rightfully making construction thereon.