BRIJ GOPAL BINNANI Vs. RUKMINI DEVI

JUDGEMENT

(1.) THE order dated 4. 8. 2006 dismissing the second appeal for want of prosecution was recalled on 17. 4. 2007. On the same day the substitution application of Shri Satyendra son of Shri Sri Gopal Binnani, appellant no. 1/1 was allowed, and Shri Babu Gopal Binnani son of Late Shri Brij Gopal Binnani respondent No. 4 was transposed as appellant on the ground, that he had succeeded to the estate of his father. The parties were heard and the judgment was reserved.

(2.) THIS second appeal arises out of judgment and decree dated 31. 7. 1978 decreeing the suit filed by late Shri Brij Gopal Binnani, the plaintiff-appellant for possession over the property in suit on payment of Rs. 2054. 13 towards costs of constructions or such amount as the Court determines. The Civil Appeal No. 354 of 1978 filed by Smt. Rukmini Devi and others, the defendants against the decree was allowed by the District Judge, Azamgarh on 17. 10. 1979 with the findings that the defendant 1st set appellants have perfected their rights by adverse possession.

(3.) SHRI Brij Gopal Binnani-the plaintiff appellant filed the suit for possession with the pleadings that the land in suit adjoins the Dharmshala and was acquired on lease by late Shri Gopi Krishna as karta of the family from one Shri Mahadev Prasad. The deed of agreement was executed on 6. 9. 1902. Late Shri Brij Gopal Binnani and Late Shri Babu Gopal Binhani are descendants of Late Shri Gopi Krishna. The Dharmshala was constructed by Late Shri Gopi Krishna in the western portion of the land. He made some other constructions on the remaining land. Smt. Rukmini Devi and others, the defendant 1st set and respondents entered into possession of the 'ahata and Bara' as tenants. In 1927 a Suit No. 1102 was filed by Late Shri Brij Gopal Binnani against the defendants for ejectment in which the predecessor of Smt. Rukmini Devi denied that they were tenants and asserted that they were in possession of the land with the permission of Late Shri Gopi Krishna, with the condition that whenever Late Shri Gopi Krishna wanted to take back the possession, he would pay the licensee the amount, which has been spent on the constructions. The suit was withdrawn. Shri Suraj Karan Binnani-defendnat No. 2 filed another suit No. 1 of 1949 against Rukmini Devi and others for possession and for arrears of rent, in which it was held that Smt. Rukmini Devi and others were merely licensees. This suit was dismissed. The appeal was dismissed by the High Court.