BANKEY BIHARI Vs. SURYA NARAIN ALIAS MUNNOO

JUDGEMENT

(1.) This Second Appeal by the plaintiff-appellant is directed against the judgment and decree dated 14-11-1980 passed by the VII Additional District Judge, Gorakhpur by which the said Court had allowed the appeal filed by the defendant and set aside the decree passed in favour of the plaintiff by the trial Court.

(2.) The relevant facts, in brief, are that the plaintiff filed Original Suit No. 104 of 1976 against the defendant for cancellation of a gift deed dated 11-4-1969 executed by Purshottam Dass in favour of the defendant to the extent of 1/3rd share in the house in dispute. The plaintiff and the defendant are the real brothers and sons of the said Purshottam Dass. The plaintiff also sought possession over a portion of the house described in the plaint, if not found in possession, and also prayed for a decree of declaration to the effect that the plaintiff was the owner in possession of the portion of the house specified in the sketch map annexed to the plaint. The plaintiff's case was that the property in question was an ancestral property which on partition came to the share of their father Purshottam Dass who remained in possession of the same as Karta of the Joint Hindu Family. The mother of the parties being dead and there having arisen some family dispute between the plaintiff and the defendant, their father made a family arrangement in the shape of partition deed on 19-7-1967 by which the disputed house was divided half and half between the plaintiff and the defendant. The father relinquished his rights in the said property but it was arranged that both the sons would be paying a sum of Rs. 35.00 per month to their father for his livelihood and he was given the choice to live with either of the sons. The plaintiff's case further was that this family arrangement was reduced into writing, signed by the parties and acted upon. The plaintiff was paying Rs. 35.00 per month to his father and had also been put in possession of his share. There were two tenants namely, Virendra Kishore Pal and Lal Man Prasad in portion of the plaintiff who were paying rent to him. The plaintiff had to file a suit against Virendra Kishore Pal which was decreed and the possession was obtained by the plaintiff. He had also filed Suit No. 218 of 1973 against the other tenant Lal Man Prasad and in his defence the said tenant had taken the plea that he was a tenant on behalf of the defendant and paying rent to him. He also referred to a gift deed of the year 1969 by which Purshottam Dass had given his share to the defendant who is now the owner of 2/3rd portion of the disputed house. The plaintiff came to know of the gift deed in question for the first time when this plea was raised in defence. The suit wasdismissed on the basis of the said document. Hence the present suit for the reliefs mentioned above.

(3.) The Suit was contested by the defendant, inter alia, on the ground that the plaintiff had no cause of action to file the same. The parties had separated during the life time of their father and a family settlement was got written but the same was not properly stamped or got registered, neither was the same acted upon. Subsequently Purshottam Dss had in the year 1969 executed a gift deed in favour of the defendant who by virtue of the same had become owner of the 2/3rd portion of the disputed house and was in possession of the same. The tenant Lal Man Prasad was paying rent to the defendant and after his death the legal heirs of the said tenant had handed over possession to the defendant. The gift deed was legal and valid and was acted upon by the parties. The plaintiff was fully aware of the said gift deed, hence the suit was also barred by time.