RADHESHYAM Vs. PURUSHOTTAM

JUDGEMENT

(1.) RADHEYSHYAM plaintiff made several fatal admissions in his statement in the Court which virtually pulled the carpet below his legs. He admitted that on the south of the suit house there was yet another house of the two brothers, still in their possession. Vide para 4 he admitted, that the suit house along with the house situated on the South were in reality one house and separated by the two brothers by raising a wall in between the two. He further admitted vide para 6 that ever since the date of sale or soon thereafter, nevertheless since the year 1968, the defendant No.1 had started residing in the suit house. The relevant facts were disclosed by the defendant No.2 to the defendant No.1 on 23.7.68. The suit was filed on 21.7.80, i.e. just two days before the expiry of period of limitation of 12 years calculated from the date of sale deed accompanied by delivery of possession.

(2.) IF at all the family of the plaintiff and defendant No.2 was joint Hindu family owning joint family property along with the suit property and if at all the plaintiff was interested in separating himself then ordinarily it was expected that he should have filed a suit for general partition wherein equities could be adjusted so as to recognise the right acquired by the defendant No.1 under the deed executed by defendant No.2. The plaintiff did not do so. He chose to conceal all joint properties of the parties, if it was so and definitely chose to conceal the other part of the house property situated contiguously with that part of the house which is in dispute. The mala fides of the plaintiff are clear. He is in league with defendant No.2 and wants to deprive the defendant No.1 of the property purchased by him impugning the sale alleging it to be an unauthorised alienation made by a, coparcener. On the facts and in the circumstances of the case it will not be unreasonable to assume that it is the defendant No.2, the vendor of the defendant No.1, who has set up his younger brother -plaintiff so as to get rid of the sale made by him in favour of defendant No.1. Though the suit was within limitation, the delay of a little less than 12 years in bringing the suit tells a lot about the genuineness of the plaintiff's claim. If only the suit would have been for general partition, the Court might have thought of protecting the sale in favour of and the possession there under of the defendant No.1, making adjustment of claim between the plaintiff and the defendant No.2 from other properties.