MUNESH KUMAR Vs. LALLI PRASAD

JUDGEMENT

(1.) This is a second appeal against the judgment and decree dated 30th March, 1984 passed by learned III Additional District and Sessions Judge, Varanasi.

(2.) Brief facts are that one Sri Govind Prasad died in the year 1937. Radhika Prasad, Debi Ratan, Parmeshwari Deen, Shitla Prasad Agnihotri (respondent 3) and Prem Shanker Agnihotri (respondent 4) are the sons of Sri Govind Prasad. The appellants are the sons of Sri Prem Shanker Agnihotri (respondent 4). The case of the appellants is that Radhika Prasad, Debi Ratan. Parmesh-wari Deen and Shitla Prasad (respondent 3) separated from their father Govind Prasad in his lifetime and after this separation, the joint family of Govind Prasad consisted of himself, his widow and his son Sri Prem Shanker Agnihotri (respondent 4). Sri Prem Shanker Agnihotri was minor, when Sri Govind Prasad died. The father of the appellants carried on the job of Munim with a meagre earning for some years and in the year 1952 he started business styled as Krishna Lime Company with the funds of the joint Hindu family and Lallu Prasad (respondent 1) was employed in the business of the joint family in the year 1955. To establish joint family nucleus, the appellants alleged that Sri Govind Prasad served in the Army at the time of Second World War and he was awarded Janggia-ward of Rs. 10/- for which the father of the appellants was nominated and by virtue of nomination done by Sri Govind Prasad the respondent 4 continued to receive the award. Besides this, Sri Govind Prasad started cloth business and carried on agricultural operation which yielded substantial income. It is averred that the savings of the cloth business and the agricultural operation carried on by Sri Govind Prasad and Janggi award regularly received by the father of the appellants constituted the joint family nucleus and with this the joint family business styled as Krishna Lime Company, was started by the father of the appellants. The said business returned good profits and on 7-5-1959, Sri Kundan Lal, respondent 2 entered into an agreement to sell a plot of land with the respondent 4. The said plot was purchased with the funds of joint family business and construction of a house on the said plot was completed in the year 1961. In 1962, a licence was granted to the respondent 1 who was an employee in the joint family concern, by the respondent 4 to use the said house. In the agreement to sell (paper No. 167 A1) execution of which was admitted but not marked as exhibit, the respondent 4 and the respondent 1 are shown as partners of the firm Krishna Lime Company. The appellants contended that the respondent 1 dominated over the respondent 4 and, therefore, in the agreement to sell, the respondent 1 managed to show Krishna Lime Company as a partnership business having two partners, which, in fact, was a joint family business belonging to the joint family of the respondent 4. It is contended that a criminal case was started in the year 1956 under Ss. 120B. 467 and 420, I.P.C. against Debi Prasad and others and the respondent 1 admitted in those proceedings himself to be an employee of Krishna Lime Company.

(3.) It is pleaded that the respondent 3 being in collusion with the respondent 1 filed a Civil Suit No. 87 of 1965 Shitla Prasad Agnihotri v. Kundan Lal and others for specific performance of the contract in which the respondent 4 and the respondent 1 were the defendants 2 and 3 respectively. Sri Kundan Lal who entered into an agreement to sell, was defendant 1 in that suit. The dispute in that suit was ultimately carried to the High Court in Second Appeal and then this Court by the order dated 3-12-1974 held that the respondents 3 and 1 of the instant appeal were entitled to specific performanance of the agreement to self (paper No. 167 A1). The appellants contended that they were not the parties to the said civil suit and, therefore, the decision dated 3-12-1974 given by the High Court in second appeal is not binding on them and that does not operate as res judicata against them. The appellants contended that the business, Krishna Lime Company was wrongly held to be a partnership business in the previous suit. Therefore, the appellants filed a suit for declaration against the respondents that the business, Krishna Lime Company, Senpura. Varanasi was the joint family business of the appellants and the respondent 4 and the respondents 1 and 3 had no concern either with the business or the house No. C 26/10-B-1 from which ejectment of the respondent 1 has been sought.