BHISMADEV TARIA Vs. RADHAKISHAN AGARWALLA

JUDGEMENT

(1.) DEFENDANTS Nos. 2 and 3 have preferred this appeal against a confirming judgment, One Habibulla Khan was the admitted owner of the suit property. Defendants Nos. 4 to 11 are the descendants of Habibulla. Habibulla entered into an agreement dated 19-5-1947 (Ext. D) with defendant No. 1 to sell the suit property for Rs. 4,300 and received an advance of Rs. 100, but before execution of the sale deed and receipt of the balance of the consideration, he died in June, 1948. Defendants Nos. 4 to 11, his heirs served a notice (Ext. A) on defendant No. 1 on 30-9-48 offering to execute the sale deed on payment of the balance of the consideration within seven days. Defendant No. 1 by his reply (Ext. A/1) claimed that he had advanced Rs. 1,400 to habibulla and expressed his willingness to pay the balance of the consideration on execution of the sale deed. Ultimately defendant No. 4 for self and as guardian of defendants Nos. 6 and 7 and defendant No. 5 for self and as guardian of defendants Nos. 8 to 11 sold the suit property to the plaintiff by a registered sale deed (Ext. 3) on 10-11-48 for a consideration of Rs. 4,000. Defendants Nos. 2 and 3 are sons of defendant No. 1. Plaintiff filed T. S. No. 51/49 on 8-9-49 impleading defendants Nos. 1 to 3 as well as the heirs of Habibulla (defendants Nos. 4 to 11)praying for a declaration of title and recovery of possession of the suit property. Defendant No. 1 resisted the suit on the plea of part performance and defendants nos. 2 and 3 in their written statement pleaded that plaintiff not having acquired any title is not entitled to the reliefs claimed. During the pendency of the suit, a compromise was entered into between defenant no. 1 and the plaintiff on 3-10-50 according to the terms contained in the petition of compromise (Ext. 4), and the suit was decreed on compromise. Thereafter defendants Nos. 2 and 3 filed T. S. No. 13/ 53 for a declaration that they were not bound by the compromise decree. That suit terminated in their favour and as per the judgment dated 8-10-55 (Ext. 1) it was held that they were not bound by the aforementioned compromise. After disposal of that suit, a miscellaneous case was started at the instance of plaintiff for restoration of T. S. 51/49 to the stage at which it was on the date of the compromise decree. This miscellaneous case was allowed on 13-3-62. Thereafter the trial Court restored T. S. No. 51/49 to the stage, as stated above, and after hearing decreed the suit against defendant No. 1 on compromise, on contest against defendant No. 2 and ex parte against defendants 3 and 4 to 11 in terms of the compromise. Plaintiff's right over the suit house as co-owner with defendants Nos. 6 to 11 was declared and he was held entitled to evict defendants nos. 1 to 3 therefrom. The aforesaid decree of the trial Court was passed on the findings; (1) that the sale deed (Ext. 3) executed by defendants Nos. 4 to 11 is not valid to the extent of interest of defendants Nos. 6 to 11; (2) that plaintiff as a consequence is a coowner of the property with defendants Nos. 6 to 11; (3) that defendants Nos. 2 and 3 are mere trespassers not having been inducted into the suit house at any time by the original owner; and (4) that defendant No. 1 who had originally been inducted as a tenant became a trespasser after he denied the title of the landlord by his reply (Ext. A/1) dated 8-10-49.

(2.) DEFENDANTS Nos. 2 and 3 preferred an appeal against the judgment and decree of the trial Court. During the pendency of the appeal, plaintiff-respondent as well as defendants Nos. 4 to 11, the heirs of Habibulla filed applications for transposing defendants Nos. 4 to 11 as co-plaintiffs. This was opposed by defendants Nos. 2 and 3. The lower appellate Court after hearing the parties, while disposing of the appeal, allowed the prayer for transposition of defendants Nos. 6 to 11 as coplaintiffs and directed amendment of the plaint accordingly. It dismissed the appeal and confirmed the judgment and decree of the trial Court.

(3.) THE judgments of the Courts below are assailed by learned counsel for appellants on the following grounds; (1) that Ext. 3 being void, plaintiff No. 1 cannot claim to have acquired any right, title or interest in the suit property; (2)assuming that plaintiff No. 1 can be said to have validly acquired the interest of defendants Nos. 4 and 5 in the suit property, he will be entitled only to joint possession of the property along with defendants Nos. 1 to 3, who cannot be treated as trespassers; (3) that plaintiff No. 1 is not entitled to joint possession of the property as the suit is not so framed; and (4) that the lower appellate Court erred in allowing transposition of defendants Nos. 6 to 11 as co-plaintiff as thereby the character of the suit has been affected, and in any case when such transposition was allowed, defendants Nos. 2 and 3 should have been given an opportunity to file additional written statement and adduce additional evidence, if any, before disposal of the suit.