RAJ KUMAR BAI Vs. DURGA PRASAD

JUDGEMENT

(1.) THIS Appeal is directed by the appellant/plaintiff being aggrieved by the judgment and decree dated 3-2-1993 passed by the VIII Addl. District Judge to district Judge, Jabalpur in Civil Appeal No. 15-A/91 dismissing her suit by reversing the judgment and decree dated 15-2-1991 passed by XII Civil Judge Class-II Jabalpur in Civil Original Suit No. 119-A/89 whereby her suit for declaration was decreed against the principal defendant the predecessor of the respondents.

(2.) THE facts giving rise to this appeal in short are that the appellant herein filed a suit of declaration against the principal defendant Durga Prasad, the predecessor of the respondents, declaring him to be in possession as an owner of House No. 112 New no. 148, situated at Bhantaliya Ward, jabalpur described in the plaint. As per averments of the plaint, initially, one nanhelal (the predecessor in title of the appellant) being owner of the disputed house was in possession of it. He under need of some money, asked Durga Prasad, the principal defendant to lend him Rs. 300/ -. In response of it, Durga Prasad demanded some security for repayment of such sum, on which, Nanhelal executed a registered sale-deed dated 19-12-1959 of the aforesaid house in favour of principal defendant Durga prasad with the oral understanding that such sale-deed shall not be acted upon between the parties and defendant will not have any right to claim his ownership of such house. The possession of the house was also not delivered to Durga Prasad. On the same day, an agreement to sale of the house to nanhelal, on payment of Rs. 300/- with interest @ 2% p. m. within three years, was executed by Durga Prasad, according to which, Nanhelal is shown to be tenant @ rs. 6/- p. m. in such house. In spite execution of such sale-deed, Nanhelal continued the possession of such house and, his name was remained in the record of the local authority. As per further averments, Nanhelal has paid, the loan amount to Durga Prasad within the aforesaid period of three years. Even after the aforesaid transaction, said nanhelal, as an owner of the property, was regularly paying he tax to the local authorities. Nanhelal being issueless, in his old age, for his convenience, he kept Rajkumari Bai, wife of his nephew, the appellant, with him, who served him for twenty years till his death. In response of such love and affection, Nanhelal bequeathed the disputed house to her vide registered Will dated 4-11-1985. Nanhelal died on 6-10-1986 and since then, she is in possession of said house as owner but, the predecessor of the respondents, in order to grab such house, got mutated his name in the record of local authorities and sent her, a notice dated 4-5-1987 to vacate the house, on which, she filed the aforesaid suit for declaration.

(3.) IN the written statement of principal defendant Durga Prasad, the predecessor of the respondents, it is stated that he purchased the disputed house from Nanhelal vide registered sale-deed dated 19-12-1959 in consideration of Rs. 300/- also got legal possession of it on the same day. He also executed an agreement on the same day stating that Nanhelal is in possession of the house as tenant at the rate of Rs. 6/- p. m. and as per understanding because such rent was at lesser side, therefore, as per their terms, the tax of such house was always paid by Nanhelal to the local authorities. Later, nanhelal, by admitting his tenancy also executed a rent-note dated 2-11-1981 in his favour. It is denied that the aforesaid sale-deed was executed in order to secure the loan amount. It is also denied that it was a loan transaction of Rs. 300/- with interest. Such document was not the ostensible but the same was acted upon. He never permitted Nanhelal to reside in the disputed house as owner. Recording the name in the record of local authorities is not a condition precedent to have the title of the property. It is further pleaded that no amount in repayment was received by him from Nanhelal after the aforesaid transaction. If any money in this regard had been paid by Nanhelal then the same would have been proved by producing the original receipts of such payment. In addition, it is pleaded that the alleged Will dated 4-11-1985, produced by the appellant, was never executed by Nanhelal with his free consent, the same had got executed from him by taking advantage of his old age with intention to grab the house, hence the same did not confer any right to the appellant. In the available circumstances, no cause of action is available to the appellant and prayer for dismissal of the suit is made.