SUBHASH CHANDER Vs. SUDARSHAN KUMAR

JUDGEMENT

(1.) This is an appeal under Clause 10 of the Letters Patent filed by Subhash Chander, defendant, against the judgment of a learned Single Judge, dated 23.2.1987, whereby he set aside the judgment and decree dated 9.6.1977 of Sub-Judge 1st Class, Ludhiana and decreed the suit of Sudarshan Kumar, plaintiff, for possession as owner of House No. B-XIII-1660 (New) double storeyed, B.XIII-496 (Old) situated in Karimpura Chowk, Ludhiana.

(2.) Briefly stated, the facts are that Subhash Chander, appellant, (defendant No. 1 in the suit) Sudarshan Kumar Beri (Plaintiff) and Mahesh Kumar, (defendant No. 2) respondent Nos. 1 and 2 respectively, were real brothers. They alongwith their father, Sh. Bhim Sain, constituted a Joint Hindu Family. However, Sh. Bhim Sain died in the year 1952. At that time, the appellant Subhash Chander and Mahesh Kumar, respondent No. 2, were minors. Sudarshan Kumar purchased House No. B.XIII-1660 through public auction as it was an evacuee property. Conveyance deed of the house was issued in his favour on 31.10.1960 and he came into possession of it. At that time, the appellant, respondent No. 2, Mahesh Kumar and their mother, Sumatya Devi were residing in House No. B.XIII/1661 as tenants under one Darshan Singh. Respondent No. 1, Sudarshan Kumar Beri, had become prosperous by dint of his hard work which the appellant, respondent No. 2 and Sumatya Devi could not tolerate and starting picking up quarrels with him on one excuse or the other and ultimately involved him in a false case under Section 107/151 of the Code of Criminal Procedure in August, 1962 and he remained in judicial lock-up for five days. During his absence, the appellant, respondent No. 2 and Sumatya Devi, took possession of the house in dispute. Thereafter, Mahesh Kumar filed a suit, alleging that he, Subhash Chander and his mother were joint owners with Sudarshan Kumar in the house in dispute. However, his suit was dismissed judgment dated 30.9.1963 (Copy Ex.P- 11). It was held that Sh. Sudarshan Kumar Beri, respondent No. 1, (plaintiff in the present case) was the exclusive owner of the house in dispute. Even prior to the said suit, the appellant and respondent No. 2 had filed another suit for permanent injunction against Sudarshan Beri which was decided vide judgment dated 20.3.1963, copy Ex. P-9, wherein it was held that the appellant and respondent No. 2 were not entitled to remain in possession of the house in dispute and were in illegal possession thereof. Since, the appellant and respondent No. 2 did not vacate the house in dispute, so Sh. Sudarshan Kumar filed a suit, for possession as owner on 29.12.1972. The appellant, Subhash Kumar through his mother Sumatya Devi, Mahesh Kumar, respondent No. 2 and their mother, Sumatya Devi, contested the suit on the ground that the house in dispute was an evacuee property and had been allotted to Bhim Sain, father of the appellant and respondent Nos. 1 and 2 and even prior to allotment, Bhim Sain had been paying rent of the said property as he was in possession as tenant and his three sons constituted a Joint Hindu Family, that the house in dispute was purchased by Sudarshan Kumar Beri for and on behalf of Joint Hindu Family out of the Joint Hindu Family funds but the conveyance deed was issued in the name of Sudarshan Kumar Beri being 'Karta' of the Joint Hindu Family. They further denied that they had taken forcible possession of the house in dispute but asserted that they alongwith Sudarshan Kumar Beri were in possession of the house in dispute from the very beginning. They next stated that the aforesaid judgments were not binding upon them, particularly Subhash Chander, who was minor at that time and was sued through his mother, Sumatya Devi and further Sumatya Devi was grossly negligent in conducting the earlier cases on behalf of the minor as she had not produced material evidence which was available at that time and had an important bearing on the point in issue.

(3.) On the basis of the pleadings of the parties, the trial Court framed the following issues :-