GHANASHYAM Vs. BAL MUKUND

JUDGEMENT

(1.) THIS appeal has been preferred by the defendant/appellant being aggrieved by the judgment and decree passed by the two Courts below. Suit was filed by the plaintiff for declaration of title, permanent injunction and restoration of possession which was decreed by the Civil Judge by judgment and decree dated 11-8-94. Plaintiff alleged that he obtained possession of the said property under the sale-deed. After putting the lock he went to Raghavgarh. In two rooms two other tenants were already residing at the time of Amaribai. Taking the advantage of the plaintiffs absence, lock was broken by the defendant and he illegally committed trespass. Police report of the same was also lodged. On refusal to vacate the accommodation suit had been filed. The defendant in his written statement took the plea that plaintiff is not the owner nor was placed in possession. Amaribai never placed him in possession of the suit accommodation. Amaribai was the sister of the plaintiff. If any sale-deed has been obtained by the plaintiff from his sister, the defendant was not aware but he had heard about the sale-deed. However, the same is illegal and fraudulent. Tenants' possession was admitted. Defendant used to reside with Amaribai and was thus in possession of the house. He has not dispossessed and committed the trespass. Amaribai was the brother's wife of the defendant. Plaintiff usurped the valuable property of Amaribai. The Courts below have concurrently found that property was exclusively owned by Amaribai and was not the joint property of the defendant and Amaribai. This finding has been arrived at by the Courts below on the strength of the sale-deed. The house in question was purchased by the husband of Amaribai namely Rambharosa and also the minor son Mahesh. Claim of Ghanshyam was not mentioned as the purchaser. There is no pleading taken in the written statement that the property was joint family property of the defendant and Amaribai. The Courts below came to the conclusion that Amaribai was having the right to transfer the house as she inherited the properly from her husband Rambharosa and the sale-deed has been found to be duly executed on the strength of deposition of Brijkishore who drafted the sale-deed, and Sitaram P. W. 5.

(2.) THE second appeal has been admitted on the following substantial questions of law:-

(3.) LEARNED counsel for the appellant has urged that one additional substantial question of law has to be considered by this Court to the effect that