LALA SHRI RAM Vs. NAND KISHORE

JUDGEMENT

(1.) The dispute in this appeal relates to a shop situated on plot No. 490 of village Datiana is the district of Meerut. One Narottam Dass was the Riyaya in possession of the shop. On the lath July 1932 Narottam Dass executed a deed of gift in respect of the shop in favour of his brotner's grandson Jehangiri Mal. He continued residing in the shop with Jehangiri Mal till his death which took place on the 26th May 1933. After he died the plaintiff who was the zamindar of the site tiled a suit No. 754 of 1939 for recovery of possession over the shop on the ground that the gift in favour of Jehangiri Mal was not permissible and alter Narottam Dass's death the shop had reverted to him. Jehangiri Mal contested the suit but It was ultimately decreed against him and the zamindar recovered possession over the shop. The suit out of which the present appeal has arisen was the filed in 1944 by Smt. Kirpa Devi, the daughter of Narottam Dass. She claimed possession over the shop on the allegation that her father Narottam Dass was its owner and she became entitled to it after his death. She said that the previous decree which the zamindar had obtained against Jehangiri Mal was not binding upon her. She impleaded in the suit the zamindar as well as Jehangiri Mal as defendants. The suit was contested mainly by the zamindar who pleaded that Narottam Dass had actually abandoned the shop about 15 years before the suit when he became too old to carry on the grocery business which he used to carry on in the shop. On account of his old age he had called Jehangiri Mal to live with himself and Jehangiri Mal subsequently persuaded him to execute a deed of gift in his favour. The zamindar further pleaded that the plaintiff had never been in possession of the shop and that her claim was barred by time.

(2.) The suit was decreed by the trial Court. The defendant zamindar went up in appeal and the learned Civil Judge who heard the appeal allowed it and dismissed the suit. The plaintiff then came up in second appeal and the learned single Judge (Hon'ble Mushtaq Ahmad, J.), allowed the appeal and decreed the suit. Before him it was urged that the very fact that Narottam Dass had executed a deed of gift in respect of the shop in favour of Jehangiri Mal indicated that he had abandoned the shop; he was a mere licencee in respect of the site and when he abandoned if it reverted to the zamindar and he took rightful possession over it; as Narottam Dass had abandoned it in his own lifetime the plaintiff could not claim any rights in it as his heirs. The learned single Judge rejected this contention and upheld the plaintiff's claim.

(3.) Permission having been obtained for filing a special appeal this appeal has been filed by the zamindar. The plea that Narottam Dass abandoned the shop fifteen years before the suit, i.e., three years before he gifted it to Jehangiri Mal was not pressed either before the learned single Judge or before us. As Narottam Dass admittedly continued living in the shop till his death that plea has apparently no ehance of success. The only contention pressed by the learned counsel for the appellant, therefore, was that the execution of the gift deed dated the 12th July 1932 by Narottam Dass amounted in law to an abandonment of the shop by him and as soon as the gift deed was executed the shop along with its site reverted to the zamindar and Narottam Dass lost all his rights in respect of it.