SHAYAMA DEVI Vs. PREMVATI WIFE OF LALA

JUDGEMENT

(1.) This is a defendant's second appeal.

(2.) The facts necessary for the decision of the appeal are as under:Smt. Premvati filed Civil Suit No. 20 of 1971 against Smt. Shyama Devi and others praying for a relief of issuing permanent prohibitory injunction against the defendants restraining them from interfering in the possession of the property in suit.

(3.) Plaintiff's case is that one Sri Banarasi Das was the proprietor of two houses as Houses Nos. 51 anal 52. situate at Mohalla Saraogyan, Mainpuri within the limits of Municipal Board, Manipuri. Aforesaid Banarsi Das had two sons, namely, Hori Lal and Gopal Das. After the death of Banarsi Das, the property in dispute, which bears Municipal No. 52, was inherited by both Gopal Das and Hori Lal, and by mutual partition, Hori Lal became owner of half share in House No. 52 and remaining half share went to Gopal Das. Hori Lal has made a gift of his share in favour of Smt. Premvati, his wife, on 7-12-1946. The gift was for half share in the property in dispute. The plaintiff's further case was that twenty years back, Gopal Das abandoned the property of his share which was in the shape of a khandahar and shifted to some other district. Smt. Premvati encroached on the said portion and came in adverse possession and acquired proprietory rights on the basis of adverse possession and constructed a new house after demolishing the khandhar on the aforesaid plot No. 52 which was left by Gopal Das, twenty years back. The plaintiff further contended that the defendants have got no concern with the property in dispute, as such, they should be restrained from interfering in the possession of the plaintiff in regard to the property in dispute. It may also be mentioned that Smt. Premvati arrayed her husband Hori Lal as a defendant in the suit, who did not contest the suit. Only defendant-No. 1 Smt. Shyama Devi contested the suit and contended in her written statement that Banarsi Das, the predecessor-in-interest of Hori Lal and Gopal Das was owner of two properties being House No. 51 and House No. 52, described above, out of which House No. 51 fell in the share of Hori Lal and House No. 52 came in the lot of Gopal Das. Hori Lal was the owner of only House No. 51 and had nothing to do with House No. 52 which is house in dispute. Hori Lal had executed a gift deed in favour of his wife and she had sold the house situate in property No. 51 to one Ganga Prasad and Ganga Prasad had sold the said house in favour of Jumandar Das Jain and he is owner in possession of the aforesaid property. It was further contended in the written statement that so far as the house in property No. 52 is concerned, Gopal Das, the owner of the house, had executed a gift deed in favour of his sister's son Prakash Chandra on 13-4-1992 in respect of the aforesaid house and Prakash Chandra became, the owner and came in possession of the property in dispute. Prakash Chandra had constructed a house in the aforesaid plot. Prakash Chandra sold part of the property to Smt. Indrani Jain on 20-12-1985 and remaining property was sold by Prakash Chandra in favour of Kusum Kumari on 23-9-1964. Defendant No. 1, namely, Shyama Devi had purchased the aforesaid house by means of a registered sale deed, dated 13-7-1971 from Smt. Kusum Kumari and Prakash Chandra. The contention of defendant No. 1 was that she is the owner in possession of the aforesaid property on the basis of the sale deed executed in her favour on 13-7-1971. It was also contended that defendants Hori Lal and Gopal Das had taken the house in dispute on rent 11-12-1965 at the rate of Rs. 30.00 per month from Sint. Kusum Kumari and plaintiff is residing in the aforesaid house with her husband, who is tenant of the house in question. The claim of the plaintiff that she has acquired rights in the house in dispute on the basis of adverse possession is baseless and false. Since the plaintiff is residing in the house along with her husband and is the tenant of the house, she cannot be permitted to claim adverse possession. On 17-7-1971, defendant No. 1 gave a notice to Hori Lal to vacate the house and terminated the tenancy of Hori Lal. The plaintiff filed the present suit claiming adverse possession, only to frustrate the proposed eviction proceedings against her husband.