NIRMALA VERMA Vs. NIRMAL BANERJII

JUDGEMENT

(1.) THIS is the plaintiff's Second Appeal having lost from the trial court as well as from the Ist Appellate Court.

(2.) THE brief facts giving rise to this appeal is, that there was a land measuring 6.92 acres which had buildings, a garden house and several structures located in premises No. D/57-58, Sigra, Varanasi which was originally owned by Late Bireshwar Banerji, Sri Durga Prasad Banerji and Smt. Manisha Devi Banerji and the deity Madhusudan Ashtashivaji represented by their shebaits Sri Bireshwar Banerji and Durga Prasad Banerji. The owners of the premises executed a registered lease-deed 21.2.1963 for one bigha of land for a period of 99 years to Sri Mahabir Prasad, the father of the plaintiff, for the purpose of building a residential house, after accepting a premium of Rs. 2000/- and a yearly rent of Rs.100/-. It was contended that the lessee was put in possession but before the building could be constructed, Sri Mahabir Prasad died in the year 1965 and, the plaintiff, being the daughter of Mahabir Prasad, became the sole successor and owner of the lease hold property. It was contended that the plaintiff resided at Allahabad with her husband and occasionally visited Varanasi and that the property was managed and looked after by her servants and that in the month of January, 1973 it was reported to the plaintiff that certain persons were trying to trespass over the plaintiffs land. Upon an inquiry and inspection of the record, it came to light that defendant Nos.11 and 12 had obtained a sale-deed dated 13.5.1969 in their favour from one of the sons of the original lessor Bireshwar Banerji. The plaintiff contended that Bireshwar Banerji died in the year 1966 leaving behind defendant Nos.1 to 5 who were his sons and defendant No.6 who was his daughter's son and defendant No.1 who was his daughter. Sri Dura Prasad Banerji, another lessor, died in the year 1964, leaving behind his son's daughter, Sandhya Chaudhary, defendant No.1. The plaintiff further contended that defendant Nos.11 and 12 had submitted a lay out plan to defendant No.17, namely, the Nagar Mahapalika in which several plots had been demarcated and a road and a park had also been carved out. The plaintiff submitted that the lay out plan was submitted with the intention of selling the plots to different persons for building purposes. The plaintiff further contended that the defendant Nos.11 and 12 had sold the sub plots to defendant Nos.13 to 20 and that some of the defendants had put temporary boundaries around sub plot Nos.3, 16, 17 and 18 and that the defendants were threatening to construct the buildings and to take possession over the disputed property of the plaintiff. The plaintiff submitted that the sale-deed executed by defendant No.2 in favour of defendant Nos.11 and 12 was not binding on the plaintiff inasmuch as the vendor alone, namely, defendant No.2 was not entitled to transfer the property. It was submitted that no title passed on to defendant Nos.11 and 12, who in turn, could not have executed any sale-deed in favour of defendant Nos.11 to 12. The plaintiff, on these facts, instituted a suit for a mandatory injunction praying that the temporary boundary walls constructed by defendant Nos.15 to 18 over sub plots No.3, 16, 17 and 18, as shown in the plan annexed to the plaint, be demolished and possession be given to the plaintiff. The plaintiff further prayed that the defendant should be directed to remove the concrete, etc. on the alleged roads and remove the boundary of the alleged park and hand over vacant possession to the plaintiff. The plaintiff further prayed that defendants Nos.11 to 21 be restrained from making any construction over the disputed land and from interfering with the plaintiff's possession. The plaintiff further prayed that the Nagar Mahapalika, the defendant No.22 be restrained from sanctioning any lay out plan or sanction any construction of any building over any portion of the disputed land in question. The plaintiff further prayed that in the event the plaintiff was found to be out of possession of the disputed property or any portion thereof, in that event, a decree of possession be passed in favour of the plaintiff.

(3.) THE defendant Nos.11 to 12 are the President and Secretary of the Co- operative Society, who also filed their written statement reiterating the same allegations and contended that they are bonafide purchasers and are in possession and that the lease-deed executed in favour of the father of the plaintiff was obtained by fraud, and that, in any case, was never acted upon nor the name of the plaintiff's father was entered in the revenue records.