MOOL CHAND Vs. GOPAL

JUDGEMENT

(1.) This appeal is directed againsl the Judgment and decree passed by the trial court and the appellate order affirming the said judgment in appeal.

(2.) The plaintiff-respondent filed suit for partition of one half share in the disputed house on the allegation that Nanhku Lal had two sons, namely, Ram Lal and Sunder Lal. Sri Gopal, the plaintiff, is the son of Ram Lal. Mool Chand is son of Sunder Lal. He alleged that both of them have equal shares in the house in dispute. The defendant-appellants contested the suit denying the relationship as alleged by the plaintiff. They stated that the plaintiffs mother was married to one Nand Ram in Farrukhabad and the plaintiff was son of Nand Ram. Jillur Rehman Khan Zamindar was the owner of the land. He had given the land to Sunder Lal for residence. He constructed kachcha hut for residence and after the death of his father, the defendants constructed pucca room and they are residing there as owners. The plaintiff never resided nor was in its possession. The trial court recorded a finding that the plaintiff proved pedigree as alleged by him and he was co-sharer to the extent of half share in the property in dispute. The defendant-appellants preferred an appeal against the said judgment and the appellate court has affirmed the judgment in appeal giving rise to this Second Appeal.

(3.) The main thrust of the submission of the learned counsel for the appellant is that the plaintiff was never in possession of the property in dispute and the appellants acquired the rights by adverse possession. He has placed reliance upon various documents showing that the name of appellant No. 1 was recorded in municipal records and he was paying house and water tax. He filed voters list indicating that plaintiff-respondent was recorded as voter showing his address at Mohalla Tareen. Bahadurganj whereas the property was situated at Mohalla Wedujal Awwal. The mere fact that the name of the plaintiff-respondent was not recorded in municipal record itself is not conclusive to prove that the appellants were in adverse possession over the property in dispute. The appellate court has recorded finding that from the evidence on the record, it was clear that even if a pucca room was constructed as alleged by appellant No. 1, both the parties resided in the said house. There is paper No. 22/C showing that since 1936, Ram Lal and his brother Sunder Lal both were residing jointly in another Mohalla and it was also clear that they Jointly constructed the house and were living jointly. The parties had two houses. One in Katlya Tola and another in Wedujal. Both the houses were mortgaged jointly by Sunder Lal and Ram Lal on 28.10.1936. When joint mortgage was executed by them, the disputed house could not be exclusively owned by Sunder Lal. The possession of one of the co-sharers of the property is also on behalf of another co-owner unless it is proved that the other co-owner in possession has been ousted by the other co-owner.