GOPAL KRISHNA TANDON Vs. AVADH RAM

JUDGEMENT

(1.) THIS is a defendant's appeal against the judgment and decree dated 14-8-1978 passed by the Civil Judge, Gonda dismissing the defendant's appeal arising out of a suit decreed by the trial court by its judgment and decree dated 31-1-1978.

(2.) FACTS giving rise to the appeal are that the respondent filed a suit for declaration of possession with respect of the house in dispute on the allegation that one Ganesh Prasad was the owner who had mortgaged the said house on 31-3-1926 by executing a deed of usufructuary mortgage in favour of Sarju Prasad and ever since the mortgagee Sarju Prasad had been in possession over the said house. A further case was set up that the mortgage was redeemed orally and the mortgagor took possession. Thereafter Ganesh Prasad, the original mortgagor, died leaving his widow as sole heir. The respondent being the cousin of Ganesh Prasad asserted that since he was the heir of Ganesh Prasad he became the owner of the house and was well within his rights to file a suit for declaration and possession. The defendant resisted the suit and set up a case that Ganesh Prasad had four sons and that the plaintiff was not the only cousin of Ganesh Prasad and besides the plaintiff Kashi Ram and Salik Ram, real brother of the plaintiff also stood on the same footing. Right to the plaintiff to sue exclusively was also challenged. The case of the plaintiff to the effect that Ganesh Prasad's widow had not been heard of since last ten years was also stated to be incorrect. It was also averred that Ganesh Prasad had sold the equity of redemption in the year 1935 to Sarju Prasad for a consideration of Rs. 90/- and on the death of Sarju Prasad who was admittedly in possession during his life time his real brother Ganesh Prasad became the heir of Sarju Prasad. It was further stated that the house in dispute fell down on account of natural decay and the defendant invested Rs. 10,000/- by constructing a new house and he could not be ejected. On the pleadings of the parties the trial court framed ten issues as under :-