NIRMAL KUMAR Vs. AWADH BEHARI

JUDGEMENT

(1.) This is a defendant's second appeal against the judgement and decree dated 29.7.1985 passed by the Civil Judge, Ballia, in First Appeal No. 45 of 1983 whereby the appeal of the plaintiff respondent against the judgement and decree dated 17.1.1983 in Original Suit No. 340 of 1981 was allowed and the suit was decreed.

(2.) Briefly stated, facts of the case are that the predecessor in interest of the plaintiff Mahaveer, who had five sons, had various properties which included the property in question. The pedigree of the family of Mahaveer is reproduced here as under:-

(3.) Three out of the five sons of Mahaveer, namely, Chhotey Lal, Maduban Prasad and Mahadev Prasad died issue-less. Hari Prasad had three sons, namely, Badri Narain, Dwarika, and Kanhaiya Lal, whereas Ram Chandra Prasad had six sons, namely, Panna Lal, Ghanshyam Das, Awadh Bihari, Poonam Chand, Jagat Narain and Udhau Ji. After partition took place in the family, it is alleged, that the house in question fell in the share of the plaintiffs i.e. in the share of Awadh Bihari and his sons. As per the plaint allegation Smt. Bela Kunwari, the widow of Chhote Lal the uncle of the plaintiff no. 1 and the grand-uncle of the plaintiff nos. 2, 3, 4 and 5 was given life interest by way of maintenance in the property in question by the joint family. Further allegation was that after the widow died, the ownership of the property in question reverted to the plaintiffs and they became absolute owners of the property in question. However, as Bela Kunwari had inducted the defendant as a licensee, after her death, the plaintiffs had also permitted the defendant to continue as licensee and when the plaintiffs required the house in question for their own living they cancelled the license and gave the defendant a notice for eviction. When the defendants did not vacate the premises the plaintiffs filed the suit in question which was numbered as Suit No. 340 of 1981 for the relief of eviction and for damages. The defendant contested the suit and alleged that he was not a licensee but was an absolute owner in as much as Bela kunwari who herself was an absolute owner of the property in question after the death of her husband, willed the property on 6.5.1973 to the father of defendant/appellant, Sri Damrilal Agarwala. Upon the death of Damrilal Agarwala, the property was inherited by the appellant/defendant being the son and the natural heir of Damrilal Agarwala.