SHARADA BAI Vs. JAMUNA BAI

JUDGEMENT

(1.) These two appeals have been filed against the judgment and decree passed by learned Single Judge in C.C.C.A.No. 1 of 1992 on 24th June, 1998. The plaintiff has filed L.P.A.No. 166/98 and two of the defendants who were defendants 1 and 2 in the suit have filed L.P.A.No. 226/99. Other defendants have not chosen to file any appeal. Both the appeals were beard together and are being decided by this common judgment.

(2.) The plaintiff filed suit for declaration of title and for recovery of possession of plaint 'A' schedule property. She also sought eviction of defendants from the 'A' schedule property. The plaintiff also sought permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the plaint 'B' schedule property. She also sought recovery of Rs. 6,000.00 towards the past arrears of damages for use and illegal occupation of plaint 'A' schedule portion, and she also claimed future damages at the rate of Rs. 2,000.00 per month for use and occupation of plaint 'A' schedule property. The plaintiff's case briefly was that, she was the absolute owner of the house bearing M.No. 21-2-131/7 to 9, Charkaman, Hyderabad. According to the plaintiff, one Sharbati Bai had purchased the same with her own funds through a registered sale deed dated 2-9-1960 from Smt. Gilli Bai. After purchase, she had demolished the old house and constructed mulgies on ground floor and residential portion on the first floor and one room on the second floor. Smt. Sharbati Bai entered into an agreement with the plaintiff on 10-2-78 thereby agreeing to sell the entire double storeyed building for a total consideration of Rs. 30,000.00. Rs. 10,000.00 was acknowledged in the agreement itself. Smt. Sharbati Bai also executed another agreement on 20th March, 1979 agreeing to sell the said building in two portions separately in favour of the plaintiff. It was agreed that the plaintiff would purchase the said building in two portions one portion being eastern portion consisting of three mulgies in the ground floor, three rooms in the first floor and one room in the second floor. Consideration for this purpose was agreed at Rs. 12,000.00. It was also agreed that the western portion of the building would be sold for consideration of Rs. 18,000/-. Accordingly the plaintiff purchased the first portion under the sale deed dated 5-12-1980 by paying the agreed sale consideration of Rs. 12,000.00. The plaintiff also obtained the possession of the property. Subsequent thereto the plaintiff purchased the remaining western portion by sale deed dated 4-6-1981 by paying the consideration of Rs. 18,000.00. Possession was delivered to the plaintiff. Thereafter the plaintiff became the absolute owner and possessor of the entire house consisting of suit 'A' and 'B' schedule properties. The defendants 1 and 2 are close relatives of the plaintiff and they in collusion and connivance with defendants 3 to 5 trespassed into the 'A' schedule portion on 1-7-81 and occupied the same. The defendants while denying the title of the plaintiff refused to vacate the same when the plaintiff asked them to vacate. According to the plaintiff the defendants have no right over the suit 'A' and 'B' properties and therefore they are liable to be vacated from the plaint 'A' schedule portion. The defendants were also liable to pay damages for the use and illegal occupation of the 'A' schedule portion. The defendants 1 and 2 filed their written statements. They claimed that one Jai Dayal was the brother of Sharbathi Bai. Gilli Bai was the wife of Jai Dayal. Sharbathi Bai was married to Ganesh Lal who was a wealthy person. Ganesh Lal and Sharbathi Bai had four sons namely Brij Mohan, Shambu Dayal Gupta, Jagdish Pershad and Omprakash Gupta. Ganesh Lal died on 27-2-1973 leaving his widow and sons with joint and undivided properties. Sharbathi Bai had no personal property or estates when her husband died. Brij Mohan married D-1 Jamuna Bai. Brij Mohan had died in 1961. Gilli Bai wife of Jai Dayal was owner of a site with an old building standing thereon in Charkaman locality of Hyderabad. She sold the said property in the name of her husband's sister Sharbati Bai under a registered sale deed dated 2-9-1960. The consideration for the sale had actually been paid by Ganesh Lal but the sale deed was obtained benami for him in the name of his wife. Subsequent to the said purchase the old house standing thereon was dismantled and with the permission of Municipal Corporation of Hyderabad in the year 1974 a three storeyed building was constructed which is now covered by the plaint 'A' and 'B' schedule property. It was further contended that, as a matter of fact ground floor was constructed by Ganesh Lal during his life time, first and second floors were completed with the joint family funds after the death of Ganesh Lal. The sale deeds dated 5-12-80 and 4-6-81 were termed as bogus and sham. Sharbati Bai was not entitled to legal rights in respect of joint family property. Omprakash, one of the sons of Ganesh Lal who is husband of the plaintiff got Sharbati Bai under his control and made his mother to bring into existence the bogus agreement and sale deeds. The family had jewellery business under the name and style of Brij Mohan Jewellers located in two mulgies bearing Nos. 21-2-167 and 21-2-168 in Charkaman being run jointly by Omprakash and his brother Jagdish Pershad. On 23-3-78 Jagdish Pershad through his advocate issued a notice to all the members of the family including the plaintiff stating therein that fraud had been committed by Omprakash in the joint business, he demanded partition and separate possession of his share. This notice was followed by a suit being O.S. No. 939/78 on the file of III Assistant Judge, City Civil Court, Hyderabad. This suit was instituted by Brij Mohan seeking permanent injunction against Jagdish Pershad and others. There was another suit O.S. No. 1380/78 on the file of III Assistant Judge, City Civil Court, Hyderabad filed by Jagdish Pershad and Anil Kumar Gupta against Omprakash Gupta and his mother Sharbati Bai. There were also criminal cases between the parties. The litigation in O.S.Nos. 939/78 and 1380/78 came to an end through a compromise and both suits were dismissed on 20th August, 1980 as withdrawn. As per the terms of the compromise one mulgi in Charkaman was allotted to the share of the Jagdish Pershad along with exclusive rights to run his business. Omprakash was given another mulgi. A life estate was created in the suit house jointly in favour of Sharbati Bai and Jamuna Bai and after their lifetime their interest in the property had to devolve upon the would be wife of defendant No. 2, and in any case by that time D-2 had not married he would be entitled to absolute rights of the property. This compromise was recorded by the Court on 20th August, 1980. The registered sale deeds in favour of the plaintiff who is the wife of Omprakash executed by Smt. Sharbati Bai were executed after the compromise dated 20th August, 1980. Sharbati Bai had agreed in the compromise that she had only life interest in the property. The compromise was binding on her, therefore she could not convey it to the plaintiff as she had no right in the suit property. The plaintiff's husband was party to the compromise and had the knowledge of the same much before the sale deeds. It is stated that the compromise in O.S.NO. 1380/78 has not been challenged. Therefore, rejoinder was also filed by the plaintiff claiming that the purchase by Sharbati Bai from Gilli Bai was not a benami transaction. It was admitted that the original house was demolished by Sharbati Bai and she constructed new building of her own. It was denied that she constructed the building with any joint family funds. The family had no funds. The defendants 3 to 5 remained ex parte in the suit.

(3.) On the basis of the pleadings following issues were framed by the trial Court;