JAGDISH PARSHAD Vs. SARWAN KUMAR

JUDGEMENT

(1.) Sarwan Kumar filed suit for possession of a portion of property No. 2349, Iqbal Ganj Road, Ambala Cantt. as shown in plan Ex. P3 attached to the plaint, in the alternative for exclusive possession by partition of property No. 2349 and for rendition of account against Jagdish Parsad. It is alleged in the plaint that property B No. 2349 Iqbal Ganj Road, Ambala Cantt. was owned by Mani Ram who had purchased this property vide sale deed dated 20-11-55 registered on 12-1-56 for Rs. 11,500/- from one Kahan Chand Chadha. Mani Ram died on 3-7-56 leaving behind Sarwan Kumar son, S/Smt. Chander Kala, Rameti Devi and Saraswati daughters. So far as Jagdish Parsad is concerned, he is not the son of Mani Ram. In fact, he is the son of Mool Chand. Mool Chand and Mani Ram were real brothers. Mool Chand died in the year 1958. At the time of the death of Jagdis Parsad's mother, he was only two months' old. There was none to bring up Jagdish Parsad after his mother's death. Plaintiff's mother brought up Jagdish Parsad. Plaintiff passed BA in 1954. He passed B.T. in 1955 and thereafter he got into service. Jagdish Prasad was inducted as licensee by the plaintiff's father in a portion of house bearing No. 2349 as his nephew without any licence fee. Jagdish Parsad was allowed to keep one room, one kitchen, one bath room and a varandah. One portion is on rent with one Siri Kishan at a rental of Rs. 60/- per month and the remaining portion is with him (Sarwan Kumar). After the death of Mani Ram, the plaintiff and his sisters i.e. Chander Kala, Rameti Devi and Saraswati became owners of the said property. Plaintiff requested Jagdish Parsad (defendant No. 1) to deliver vacant possession of the portion in his occupation and revoked his licence. On the other hand, Jagdish Parsad- defendant took a plea that he had also share in the property as he is his real brother. In fact, Jagdish Parsad-defendant is not his real brother. He is not son of Mani Ram but he is the son of Mool Chand. He is thus nephew of Mani Ram. As nephew, he has no right to inherit the property left by Mani Ram when Mani Ram died leaving behind his own son and daughters. Since he (Sarwan Kumar) remained posted outside and Jagdish Parsad defendant was residing at Ambala Cantt. and was also his cousin, he allowed him to rent out the portion in order to supplement his (plaintiff's) income. Jagdish Parsad defendant, however, did not pay him even a penny out of the rental income saying that he had been paying taxes and spending on repairs. His plea was that whatever he realised by way of rentals, he spent on repairs and on paying taxes. Defendant No. 1 Jagdish Parsad wanted some finances for his business. He requested him to mortgage the property and he assured that he would go on paying the amount. By a trick Jagdish Parsad got his name introduced in the mortgage deed in 1965 on the plea that since he (Sarwan Kumar) plaintiff was living out of Ambala Cantt. he would go on paying the amount of mortgage to the mortgagee and hence his name should be got introduced in the mortgage deed. Out of love and affection, he got the name of Jagdish Parsad defendant introduced in the mortgage deed. Since the entire amount was to be consumed by Jagdish Parsad, the name of Jagdish Parsad was got introduced in the said mortgage deed although he had no concern with the property at any time. Defendant Jagdish Parsad had been paying mortgage amount from time to time to the mortgagee and had been obtaining receipts. Some time back the plaintiff demanded account of the mortgage but the defendant- Jagdish Parsad avoided the issue and told that he did not keep any account of payment upon which the plaintiff became suspicious and approached the mortgagee. The mortgagee told the plaintiff that a sum of Rs. 1500/- was due which the plaintiff offered to pay in order to redeem the mortgage but the mortgagee was hand in glove with defendant-Jagdish Parsad and refused to receive the amount and deliver back the documents to the plaintiff. All these happenings gave rise to suspicion in his mind that Jagdish Parsad defendant might put forth some claim on the property, he revoked licence by means of notice dated 11-1-79. Defendant No. 1 refused to receive notice. Plaintiff also gave notice to Shri Amar Nath who is mortgagee and to Shri Siri Kishan who is tenant. Plaintiff did not want to keep Jagdish Parsad-defendant as his licensee. Jagdish Parsad-defendant failed to deliver possession of the portion in his occupation. In case the Court came to the conclusion that Jagdish Parsad had got share in the property, at the most, his share would be 1/5th in the property. In that event, the plaintiff would be entitled to rendition of the entire amount received by Jagdish Parsad from time to time and the plaintiff is entitled to exclusive possession by partition of the disputed property.

(2.) Jagdish Parsad defendant No. 1 contested the suit of the plaintiff. It was urged that he was not the son of Mool Chand. In fact, he and Sarwan Kumar are the sons of Mani Ram and S/Smt. Chander Kala, Rameti Devi and Saraswati are the daughters of Mani Ram. Mani Ram died in the year 1956 leaving behind two sons and three daughters. He is the son of Mani Ram and was brought up by his mother i.e. the wife of Mani Ram. It was denied that he is occupying portion of the property as licensee. In fact, he is occupying portion of this property as son of Mani Ram. Portion of this property is on rent with Siri Kishan. On the death of Mani Ram, he and the plaintiff became owners of the property in equal shares. He (Jagdish Parsad) let out portion of the property to Siri Kishan in his capacity as son. It was denied that he let out portion of the property to Siri Kishan at the asking of the plaintiff. He is paying taxes and is spending on the repairs of the property out of the rentals received by him from Siri Kishan. Plaintiff is not entitled to any accounts from the defendant nor he is entitled to any exclusive possession. Defendants 2 to 4 i.e. the daughters have no share in the property. Defendants 2 to 4 supported the claim of the plaintiff. On the pleadings of the parties, the following issues were framed :-

(3.) Plaintiff's suit was decreed for possession to the extent of 1/4th share in the house by partition and also for rendition of accounts by defendant No. 1 Jagdish Parsad to him in view of his finding that the plaintiff and Jagdish Parsad are not real brothers. Plaintiff is the son of Mani Ram while Jagdish Parsad defendant is the son of Mool Chand. Property in question was owned by Mani Ram. On the death of Mani Ram, the property in question devolved upon Sarwan Kumar and his sisters S/Smt. Chander Kala, Rameti Devi and Saraswati in equal shares. It was found that the portion of the property was let out by Jagdish Parsad at the asking of the plaintiff. Jagdish Parsad received rentals from the tenant. It was found that he should account for the rentals received by him from the tenant and also what was spent by him on the repairs of this property and in discharging the tax liability on this property.