RANGULAL RAM Vs. MAKHAN LAL AND ORS.

JUDGEMENT

(1.) THIS is a second appeal by the unsuccessful plaintiff whose suit for recovery of possession of a house has been dismissed.

(2.) THE plaintiff is the son of one Jainarain who had a brother Rup Ram and mother named Achchunari Bewa. The plaintiff, his uncle Rup Ram and his grand mother Achchunari were living joint. They own some homestead lands in Khurda and paddy lauds in the adjoining villages. The plaintiff's case is that in or about the year 1924 there was an oral partition of the joint family properties between him and his uncle and that plot No. 533 consisting of 5.379 acres of land and the suit house and plot No. 534 which is the adjoining bari, were allotted to his share. The plaintiff further alleges that he was in possession of these plots, allotted to him, but that the properties stood jointly recorded in the settlement khatian in the names of the plaintiff, Rup Ram and Achchusnari. On 13 -8 -1.928 Rup Ram and Achehunari executed a 'nadabi deed (Ex. 2) in favour of the plaintiff acknowledging his title to the suit properties and the lands allotted to his share. In 1938 Rup Ram and Achohunari executed an agreement to sell the disputed house in favour of defendant 3 and his sons defendants 1 and 2. The defendants brought a suit against Rup Ram and his mother Achchunari in O. Schedule 86 of 1938 in the Munsif's Court for specific performance of the contract to sell. That suit ended in a compromise decree in execution of which the defendants took delivery of possession of the disputed property on 11 -1. 1942 thereby and dispossessed the plaintiff. The plaintiff therefore, filed this suit for recovery of possession of the house on 17 -10 1944. The only defence put up by the defendants is that the suit is barred by limitation by reason of their vendors having enjoyed the property openly and adversely to the plaintiff for longer than the statutory period of twelve years. The plaintiff led evidence to show that he was in enjoyment of the property, through tenants, but this was rejected by both the Courts below as unreliable. The evidence on behalf of the defendants was that Rup Ram was always in possession of the suit property for 15 to 20 years. The Courts below, therefore, held that the plaintiff had failed to prove dispossession within 12 years of the suit and accordingly dismissed the plaintiff's suit. The only point to be considered is whether the plaintiff's right to eject has been established. The 'nadabi' deed, dated 13.8 -1928(ex. 2) recites :

(3.) EXHIBIT 5 is the certified copy of a registered sale deed dated 2 -1 -1937 executed by the plaintiff and his uncle Rup Ram and his grandmother, Achchunari, jointly in favour of one Ramkumar Ram. This document recites that the plaintiff, his uncle and grandmother jointly executed an usufructuary mortgage deed in favour of the vendee on 4.12 -1931 and borrowed RS. 400. It further recites that the plots sold thereby, together with the house standing thereon, were in joint enjoyment of the vendors. The description of the boundaries also shows that the vendors had some joint lands in plot No. 537. Exhibits 6 and 7 series show that the Settlement Record is still in the joint names of the plaintiff, his uncle and his grandmother. It would, therefore, appear that in spite of the admission that there was an oral partition -according to the Nadabi deed of the year 1928 -the properties were in fact never divided by metes and bounds. In 1981 the joint family borrowed some money and later, in 1937, executed Ex. 5 in order to discharge that debt.