POORAN CHANDRA JAIN Vs. OM PRAKASH JAIN

JUDGEMENT

(1.) THIS second appeal has been filed by the original defendant no.1, namely, Pooran Chand Jain against the judgment and decree dated 21.07.1984 passed by the Additional District Judge, Hardoi in Civil Appeal No.169 of 1979, whereby the appeal was dismissed.

(2.) THE brief facts giving rise to this second appeal are that the original plaintiff -respondent nos.1, 2 and 3 filed a suit for partition against the present appellant as well as the original defendant nos.2 and 3 of the original suit with the allegation that Late Pirthavi Mal had purchased the disputed house from Gajodhar Prasad on 05.10.1948. Late Pirthavi Mal had a rice mill and he used the southern portion of the disputed property as 'KARKHANA'. As he was in need of some money for his business, he mortgaged the house in dispute alongwith tin shed to Kailash Chandra and Sita Ram in the year 1963 and took a loan of Rs.15000/ -. However, Kailash Chandra and Sita Ram instead of getting a mortgage deed executed, got the sale deed executed on 13.12.1963. An agreement to resale could not be executed at that time because before an agreement for resale could be executed, both Pirthavi Mal and his son Ram Dayal died. Kailash Chandra and Sita Ram, therefore, executed agreement to resell in favour of the surviving sons of Pirthavi Mal, namely, Chhotey Lal and Pooran Chand and son of Ram Dayal, namely, Babu Ram on 14.07.1964. The other sons of Ram Dayal, namely, Om Prakash and Dharam Chand could not join in the agreement as they were out of station at the time when the agreement was executed. In pursuance of the aforesaid agreement, a sale deed was executed on 31.12.1971 on behalf of original plaintiffs in favour of plaintiff no.2, namely, Babu Ram and the original defendant nos. 1 and 2, namely, Pooran Chand and Chhotey Lal by Kailash Chandra and Sita Ram. Thus, the property was redeemed from mortgage. The original defendant no.2 Babu Ram had taken a loan of Rs.5000/ - from Smt. Sharda Jain, the original defendant no.3, therefore, he executed a sale deed of his share in her favour on 11.01.1972. It is not disputed that all the parties were in joint possession as joint Hindu property from the time of Late Pirthavi Mal. The share of the original plaintiffs was 1/3, the share of original defendant no.1 Pooran Chand was 1/3 and the share of original defendant nos.2 and 3 was also 1/3. It is also not disputed that the original defendant no.3 Smt. Sharda Jain had filed a suit for partition, but subsequently, the suit was withdrawn.

(3.) THE original defendant no.1 Pooran Chand filed his written statement admitting that Pirthavi Mal had purchased the disputed house in the year 1948 from Gajodhar Prasad. He used a portion of the disputed house as rice mill, but had been carrying on DAL DARANA business from somewhere else. The original defendant no.1 also admitted that Pirthavi Mal had executed a sale deed on 13.12.1963 in favour of Sita Ram and Kailash Chandra for a sum of Rs.15,000/ - and Sita Ram had also agreed to execute an agreement for resale on 14.07.1964. However, before the agreement could be executed, Pirthavi Mal and Ram Dayal both had died and the original defendant Nos.1 and 2 inherited the property of Pirthavi Mal. However, the defendant no.1 denied the share of any other party in the disputed house. The defendant no.1 further admitted the execution of the sale deed by Kailash Chandra and Sita Ram on 31.12.1971 in favour of the original plaintiff no.2 and the original defendant nos.1 and 2. It was stated by the original defendant no.1 in his written statement that the defendant no.2 used to live with the defendant no.3 in the eastern portion of the house with the consent of the defendant no.1 as his licensee. In the middle portion of the house of the disputed house, the plaintiff no.2 had been residing as licensee of the defendant no.1. In respect of the 'KARKHANA' in the open land, it was stated that it had always been in possession of defendant no.1. He also denied any share of the defendant nos.2 and 3 in the disputed house and the 'KARKHANA'. He further stated that the 'KARKHANA' was constructed by the defendant no.1 himself and the remaining defendants had no concern with it. It is also not disputed between the parties that by the agreement dated 14.07.1964 the property could not be re -conveyed and the time mentioned in the agreement expired. Therefore, another agreement was executed on 31.12.1966 which was subsequently renewed on 30.12.1969. It was also stated by the original defendant no.1 that the plaintiffs and the defendant no.2 Chhotey Lal had no money to get the property re -conveyed and when Kailash Narain and Sita Ram did not agree to extend the time, the defendant no.1 alone got the property re -conveyed, but Kailash Chandra and Sita Ram in order to avoid any controversy and dispute of income tax, got the names of plaintiff no.2 and defendant no.2 also included in the sale deed although the plaintiffs and defendant no.2 had nothing to do with the property and had no share at all in the disputed property. On the basis of the aforesaid pleadings, the defendant no.1 stated that the plaintiffs were not entitled to get any share and prayed for dismissal of the suit.