INDUBAI Vs. JAWAHARLAL

JUDGEMENT

(1.) This judgment will also govern the disposal of First Appeals Nos. 44/1983, 46/1983 and 47/1983 which involve common legal and factual controvercy.

(2.) This is defendant's first appeal under Section 96, C.P.C., against the judgment and decree dated 20th January, 1983 passed by Shri L.S. Nihalani, First Additional Judge to the Court of District Judge, Raipur, in Civil Suit No.6-A/1967, directing the appellant to deliver vacant possession of the suit land together with mense profits at the rate of Rs.300/- per month from the date of the suit till delivery of the possession.

(3.) These four appeals arise out of four different suits which were subsequently consolidated in the trial court and which had a common defendant. Property in dispute in all the appeals is part 'Khairagarh Bada' situate in Rikhiya Para, Raipur. It appears that Raja Kamalnarayan Singh had purchased the entire Bada consisting of 10.32 acres of land on 11-1-1907 from one Kasturchand and since then it remained his family property. It came to be inherited by Raja Birendra Babadur Singh of Khairagarh who by a sale-deed dated 7-8-1946 (Ex. P-1), sold it to Mohammad Bhai and Pratap Chand Chandak. It is the case of the plaintiff that Mohammed Bhai assigned his half share to Seth Rajab Ali on 7-10-1948 and Pratap Chand Chandak assigned his half share to Shivram Poddar on 24-12-1947, with the result that entire 'Khairagarh Bada' was held by these four with an undivided 1/4th share therein. The case of the plaintiff was that the aforesaid 4 persons constituted themselves into a partnership firm on 9-10-1948 with the object of developing the Bada into a residential locality, carving out plots and selling them to prospective buyers. This business, according to the plaintiff, was conducted up to 1-2-1954 when the partnership was dissolved and unsold plots divided among the partners. According to the deed of dissolution dated 1-2-1954, Mohammed Bhai was given 34033 sq. ft. of land, Rajah Ali was given 36665 sq. ft., Shivram Poddar was given 38065 sq. ft. and Pratap Chand Chandak was given 37935 sq. ft. of land. The plaintiffs in all the four suits pleaded that the defendant, in the month of August, 1949 or thereabout encroached upon the land as shown in the plaint map. According to them, the plot had been occupied by the defendant initially with the permission of the plaintiff with an agreement that the same will be vacated whenever required. The plaintiffs further alleged that the defendant did not vacate the plot on being required but requested that they be sold to him. Since the plaintiffs did not agree to sell the plot and defendant did not vacate the same, he became trespasser liable to be evicted by a decree of the Court. The original defendant Nandoolal resisted these suits on numerous grounds. He claimed to be a partner of the firm and in possession of the suit properties since 1947, because of his share in the business. According to him, he being the most experienced person was required by the plaintiffs to do development and plotting work and sell the plots for the benefit of all. He was promised 1/4th share of the profit earned. According to him, he entered into possession of the properties with a view to carry out the aforesaid business effectively. It was further submitted that the suit had become barred by limitation. It was also submitted that the respondents plaintiffs had brought an earlier suit i.e. Civil Suit No. 31-A of 1951 for obtaining possession of two rooms only. It was claimed that the present suit being based on the same cause of action, was barred by the provisions of Order 2, Rule 2, C.P.C. The learned trial Judge, on the basis of evidence adduced by the parties, held that the suit was neither barred by the provisions of Limitation Act, nor Order 2, Rule 2, C.P.C. It was also held that the appellant was neither the partner of the dissolved firm nor had any title over the suit properties. The suits were accordingly, decreed and hence these appeals.