LAVKUSH MALVIYA Vs. SUMAN DEVI AND 2 ORS

JUDGEMENT

(1.) This second appeal has been preferred against the judgment and order dated 19.7.2018 passed by Additional District Judge, Mirzapur in Civil Appeal No. 07 of 2018 Lavkush Malviya v. Smt. Suman Devi and another whereby the learned lower Appellate Court has dismissed the appeal filed by the plaintiff/appellant and has confirmed the judgment dated 27.1.2018 passed by Civil Judge Senior Division , Mirzapur in Original Suit No. 55 of 2005 Luvkush Malviya v. Smt. Suman Devi and another, dismissing the suit of the plaintiff/appellant.

(2.) Heard learned counsel for the appellant and learned counsel for the caveator/respondent on the point of admission and perused the record. Some brief facts giving rise to the dispute between the parties are that the plaintiff/appellant filed a suit for declaration of title and permanent injunction against the defendant/respondents with plaint averments that he is the owner in possession of the disputed house, which he has built from his own resources and in which he is residing since long. The defendants have no concern with the aforesaid house. The defendant no. 1 is the real aunt of the plaintiff who is trying to interfere in his peaceful possession without any right and title, therefore, it was prayed that the defendants be restrained from interfering in the peaceful living of the plaintiff in the disputed house. According to the plaint, the property in dispute originally belonged to the real uncle of plaintiff namely, Late Tribhuwan Nath Malviya, who was issue less. The plaintiff-appellant was living with his uncle (Bade pita or Tau) who used to treat him as a son. After the death of Tribhuwan Nath Malviya, in the year 1989 the plaintiff constructed three rooms over the said land in the year 2001 and is residing on the said property since then. At the time of construction, no one raised any objection and as the plaintiff is residing in the disputed house since after the death of Late Tribhuwan Nath Malviya openly and in the knowledge of defendants, thus, he has perfected his title by adverse possession too.

(3.) The defendants filed written statement denying the truthfulness of plaint averments. It was stated in written statement that husband of defendant no.1 were five brothers. They all including the plaintiff's father, were the sons of Late Dudhnath and after the death of Dudhnath, they jointly inherited the property belonging to Dudhnath. After sometime, partition among themselves took place by mutual consent and all the brothers became owner in possession of their own shares. The disputed land belongs to the defendant who is a widow lady and the plaintiff is trying to usurp it by concocting a false story. It was also stated that the disputed house was constructed by the Late husband of defendant no. 1 and the defendants are in possession of the said house since 16 or 17 years.