PARAS NATH Vs. RAMESHWAR RAM

JUDGEMENT

(1.) N. L. Ganguly, J. This second appeal is directed against the judgment and decree dated 13-2-1974 passed by the District Judge, Ballia in Civil Appeal Mo. 30 of 1970. The plaintiff filed a suit for partition of one half share in the Ahata described in Schedule Ga. of the plaint.

(2.) IN the plaint it was pleaded that Bihari Ram was the common ancestor of the parties, who had three sons Vishwanath Ram, Khedu Ram and Lautu Ram. The aforesaid Bihari Ram's three sons mortgaged the house in question for Rs. 3,200 with Hira Lal Gauri Shanker Prasad. This was an usufructuary mortgage. After execution of the mortgage deed the family of the aforesaid Vishwanath Ram and two other brothers had no place left for residence or for doing any business. Their financial condition was also in a very bad state. Vishwanath Ram and Lautu Ram for some time went to Bengal to do some business there. Gauri Shanker, the brother of plaintiff No. 1, and defendant No. 1 and the son of Khedu Ram also separated. The plaintiff No. 1 also left the village to do some business. The plaintiff No. 1 began to maintain his own father and also Parasnath, defendant appellant.

(3.) THE defendants No. 1 to 3 contested the suit, filed written statement and pleaded that the plaintiff had no right or title to maintain the suit. THE plea of limitation was also raised. THE defendants pleaded that they are in possession and the suit was barred under Section 34 of the Specific Relief Act. THE defendant Paras Nath pleaded that the Ahata was purchased by him from Gauri Shanker Prasad by means of a sale-deed dated 25-1-1960 and the constructions were raised by him inside the Ahata. He pleaded that the plaintiff Rameshwar Ram and Gauri Shanker Prasad had separated soma 20-21 years back and only Khedu Ram Paras Nath and Ramji Ram and Smt. Kalika remained joint. It was stated that in the year 1927 the three sons of Bihari Ram had executed an usufructuary mortgage deed of the ancestral house in favour of Gauri Shanker Prasad and Hira Lal. In 1949 one suit being brought on the basis of this mortgage it was redeemed by plaintiff No. 1 Rameshwar Ram. Defendant No. 1 had brought Original suit No. 184 of 1968 for redemption of his share in the house. He had also taken the shop in the property given in schedule ka on rent from other members of the family by means of a rent note dated 15-5-2006 (Kunwar Sudi Samwat ). It was said that the shop described in schedule kha belonged to Smt. Bachni who purchased the same from her money and the plaintiff was in occupation of this shop as a tenant on payment of Rs. 30 per month as rent. Gauri Shanker defendant had filed a separate written statement in which he stated that after the death of Bihari Ram his sons continued joint. After 1927 Lautu Ram Vishwanath separated from Khedu Ram but the joint family property was not partitioned and redeemed the usufructuary mortgage with the joint family money. He had no separate business and this property was also acquired from the joint family funds.