SOW PUSHPA GOYAL Vs. DAYA RAM

JUDGEMENT

(1.) This second appeal has been filed by plaintiffs challenging the judgment and decree dtd. 23/1/1995 passed by District Judge, East Nimar Khandwa in Civil Appeal no.11-A/90, reversing the judgment and decree dtd. 20/9/1990 passed by I Civil Judge Class-I, Khandwa in Civil Suit no.11-A/1964.

(2.) In short the facts are that, original plaintiff Bhagchand (the appellants are his descendants) instituted a suit for declaration of title and permanent injunction mainly against the original defendant 1-Seth Champalal (due to his death and there being no LR, his name was deleted vide order dtd. 9/2/1983) and defendant 2-Dayaram (the respondents 1(a) to (j) are his descendants) with regard to a house situated in Mohalla Gol Bazar, Khandwa as mentioned in schedule-A to the plaint. Later on Mangilal (the respondents 2(A) to (E) are his descendants) and Chhotibai (since deceased) were also made party to the suit as defendants 3-4. It is alleged that Tularam (father of plaintiff-Bhagchand) was owner of the house and in the year 1928 he was declared insolvent and in the insolvency proceedings, the suit house was sold in auction on 22/1/1932 which was finalized in the name of defendant 1-Seth Champalal for Rs.235.00, who was maternal uncle (mama) of the plaintiff-Bhagchand. In pursuance thereof sale certificate was issued on 9/8/1941 (Ex.D-2/1) in the name of Seth Champalal and it was agreed between Seth Champalal and Tularam that he would try to pay consideration amount of auction sale and as such he was permitted to continue in occupation of the house and thereafter, plaintiff's mother paid amount to Seth Champalal and in turn he never took possession of the house. The plaintiff in para 5 of the plaint also took plea of adverse possession over the suit house. It is alleged that the defendant 2-Dayaram claiming himself to be owner and landlord of the house on the basis of sale deed dtd. 17/3/1962 (Ex.D-3/4), allegedly executed by defendants 3-4 Mangilal and Chhotibai (who were LRs of Seth Heeralal) filed suit for eviction (C.S no.85-A/63 and 86-A/1963) against the plaintiff and his tenant in the Court of II Civil Judge Class-II, Khandwa, and in turn the plaintiff instituted the present suit on 3/4/1964 for declaration of title and permanent injunction restraining the defendant 2-Dayaram from proceeding with the suits for eviction with regard to suit house. On inter alia allegations the suit was filed.

(3.) The defendant 1-Seth Champalal appeared and filed written statement denying the plaint allegations and contended that Tularam mortgaged the house in question vide mortgage deed dtd. 2/12/1922 in favour of Smt. Gangabai for consideration of Rs.2,500.00. Later on Gangabai and her son Radhakishan assigned the said mortgage to Seth Heeralal and Seth Madholal (both sons of Seth Laxminarayan Agrawal) for consideration of Rs.4,000.00 by registered deed dtd. 17/7/1931 and original mortgage deed was handed over to Seth Heeralal-Madholal. It is contended that he (Seth Champalal) made bid in auction sale on behalf of Seth Heeralal- Madholal for Rs.325.00 in which he was benamidar and Seth Heeralal-Madholal were real purchasers and they obtained possession of house upon confirmation of sale and became full owner thereof. It is further contended that from the date of confirmation of sale i.e. from the year 1932, Seth Heeralal-Madholal were in possession of the house and plaintiff's father Tularam went to live in rented house and died there. It is alleged that upon partition on 10/9/1950 amongst Seth Heeralal and heirs of Seth Madholal, the suit house fell in the share of Heeralal vide registered partition deed, resultantly the plaintiff and one tenant-Gopikishan became his tenants on ground floor and first floor. Seth Heeralal expired in the year 1953 leaving behind his son Seth Mangilal and widow Smt. Chhotibai. It is further contended that on 17/3/1962 Seth Mangilal and Chhotibai sold the house to defendant 2-Dayaram vide registered sale deed dtd. 17/3/1962 (Ex.D-3/4) for Rs.8,000.00 and delivered possession to him which was also consented by defendant 1-Seth Champalal without any consideration. With the aforesaid contentions, the suit was prayed to be dismissed.