GAURIBAI Vs. PADAMNATH

JUDGEMENT

(1.) THIS is plaintiff's appeal from the decree dismissing their suit for possession.

(2.) THE following genealogy would facilitate the understanding of the case;

(3.) THE other house in dispute is situate in Gangamunda, Jagdalpur. Plaintiffs claimed that this house was built by Kunjbiharilal with his separate earnings and accordingly formed his exclusive property. Ex, P. 5 is an extract from Ground -rent Register of the Jagdalpur Town Committee, which shows that right from the year 1920 to 1927, when Kunjbiharilal died, the house was recorded in his name as owner. All the plaintiffs' witnesses have testified to the fact that this house was built by Kunjbiharilal. Even the defendants' witness, Loknath (1 -2. D.W. 2) admitted that the house was constructed by Kunjbiharilal after acquiring the plot from the State. The lower appeal Court was, therefore, obviously mistaken in surmising that Kunjbiharilal might have only supervised the construction, Loknath further said that Kunjbiharilal had borrowed money from the State for the construction of this house. The mere fact that he could not give the details of the loan did not justify the lower appeal court to discredit his evidence. Apart from whether he bad raised money for construction of the house, Kunjbiharilal obviously was an earning member and was, therefore, likely to have funds of his own for acquiring the site and constructing the house. It would appear from the evidence of defendant No. 1 Tukaram (P.W. 21) that Awadhbiharilal also bad built a house in Ramaiyapura in 1931, which was his exclusive property. It thus appears that after the death of Kali Prasad, although the brothers were joint they were earning separately and acquitted separate property as exclusive owners. The lower appeal Court has not given a clear finding as to who had constructed the house in suit. The trial Court has discussed this question, and also the source of money, elaborately in its judgment, and its finding is supported by the bulk of evidence and probabilities of the case. Therefore, the finding of the lower appeal Court, which is perfunctory and conjectural, cannot be accepted.