KRISHNA TAMRAKAR Vs. SUNDER BAI

JUDGEMENT

(1.) This First Appeal under Sec. 96 of CPC has been filed against the Judgment and Decree dtd. 30/7/1998 passed by 1st Additional District Judge, Sagar in C.S. No. 16-A/1998, by which the suit filed by the Appellant for declaration of title as well as for permanent injunction thereby restraining the defendants from instituting suit for eviction as well as for recovery of mesne profits was dismissed.

(2.) The facts necessary for disposal of present appeal in short are that the appellant filed a suit for declaration that the suit land is an ancestral property of the parties and for permanent injunction. The family tree as pleaded by the appellant is as under : <IMG>JUDGEMENT_122_LAWS(MPH)3_2023_1.jpg</IMG>

(3.) Thus, it is clear from the family tree that the plaintiff represents the family branch of Nannu Tamrakar whereas the defendants represent the family branch of Khemchand Tamrakar. It is the case of the plaintiff that Khemhand and Nannu were members of Joint Hindu Family and the ancestral property was never partitioned. The details of movable and immovable properties were given in para 3 of the plaint. It was claimed that the house known as Mithyayi, Sagar is in actual possession of the plaintiff, whereas the remaining property was in the management of Durga Prasad. After the death of Durga Prasad, his widow Smt. Gulab bai was residing in the house situated in Mohan Nagar Ward, Sagar whereas the house known as Mithiyayi, Sagar, remained in actual possession of the plaintiff. All other properties which are mentioned in para 3 of the plaint remained in the management of Gulab bai. Gulab bai expired on 9/5/1986 and her last rites were performed by the plaintiff. Since, Durga Prasad had no son, therefore, his last rites were also performed by the plaintiff. It was pleaded that even after the death of Gulab Bai, the plaintiff continued to remain in possession of the house known as Mithyayi, but the remaining properties mentioned in para 3 of plaint remained in management of defendants no. 1 and 2. It was pleaded that the properties mentioned in para 3 of the plaint are the Joint Hindu Family properties and accordingly, the plaintiff has 1/12 share in the same. The plaintiff received a notice dtd. 17/4/1987, in which the plaintiff was alleged to be the tenant and a threat was given that a suit for eviction and arrears of rent would be filed. Accordingly, the suit was filed for declaration that the properties mentioned in para 3 are Joint properties and from restraining the defendants from filing suit for eviction and recovery of arrears of rent.