HOTAM SINGH Vs. SEWARAM

JUDGEMENT

(1.) THIS appeal is filed by the defendants challenging the judgment and decree passed by the Trial court and affirmed by the Single Bench of this Court.

(2.) BRIEF facts of the case are that respondent No. 1 Sewaram filed a civil suit for declaration of his title and possession. He claimed that the property in the suit marked as "a B C D" attached to the plaint is the disputed property and is owned jointly by him and defendant No. 4 Ramratan. Suit was filed on 2-14985. Lateron by order dated 8-9-1994 Ramratan was transposed as plaintiff. According to the plaintiffs land over which house is constructed belonged to Lalaram maternal grand- father of Ramratan plaintiff No. 2. Lalaram gifted the property to Ratanlal by executing registered gift deed (Ex. P-1) on 4-11-1938. On 24-7-1946 Ratanlal's mother Bhagwatibai and Jagannath, Ratanlal's uncle (father's elder brother) jointly sold the property for a consideration of Rs. 4000/- vide sale deed, Ex. D-1. Property was repurchased in the name of Bhagwati widow of Chokhariya on 21-9-1946 for a consideration of Rs. 2500/ -. On the same day, Bhagwatibai mortgaged the property with Prabhu Dayal and Mataprasad for a consideration of Rs. 1600/-vide Ex. D-3. On 16-5-1949 decree for recovery of rent of Rs. 217/- at the rate of Rs. 80/- per month was passed against Bhagwatibai. In order to clear the money decree. Bhagwatibai sold the property to the appellants Ganesh Ram, Hotam Singh and Chhotelal for a consideration of Rs. 1500/- vide sale deed Ex. D-2. On 22-4-1950 purchaser paid the mortgaged money to Mataprasad and secured possession vide Ex. D-4. On 29-1-1951 remaining part of the disputed property was purchased by the appellants from the Municipal Council vide Ex. D-8. Appellants then applied for permission for raising construction over the said property and permission to construct the house was granted to them on 11-8- 1959 vide Ex. D-7. This sale deed was not challenged and no action was taken by Ramratan to secure the possession. On 2-1-1985 Sewaram filed a civil suit for declaration and possession claiming therein that the house over the plot is joint family property and he has half share in the property. Defendants 1 to 3 were permitted to occupy the portion of the house marked as "a B C D" on licence. When he asked the defendant to vacate the house, they refused to vacate the house and denied the title of the plaintiff and defendant No. 4. Plaintiff claimed that defendants are occupying the portion. "a B C D" as his licencee, therefore, he filed a suit for declaration of his title over the portion "a B C D" and possession.

(3.) DEFENDANT Nos. 1 to 3 filed their written statement and opposed the suit. Specific plea was taken by the defendants that the suit is barred by limitation. Suit at the instance of Sewaram is not maintainable. Trial Court framed issues regarding limitation, title of Sewaram and right of Bhagwatibai to alienate the property. Trial Court decreed the suit. During the first appeal before Single Bench, appellants entered into compromise with Ramratan. Ramratan had filed an application for compromise under Order XXIII Rule 3, CPC before the First Appellate Court. First Appellate Court dismissed the application under Order XXIII Rule 3, CPC on the ground that Ramratan can not be permitted to cross the floor and dismissed the appeal.