CHHAJU Vs. NATH

JUDGEMENT

(1.) The dispute in this second appeal relates to a site AEFD marked red in the plan, Exhibit P.2, which is a part of the bigger site ABCD shown in the same plan. It is the common case of the parties that it was a part of Khasra No. 4732. This Khasra number was held by one Gahlo, the grandfather of Nath and his two brothers Bachna and Kishana, defendant Nos. 1 to 3, and Gahlo's brother Dasondhi to the extent of 1/2 share and the remaining half by Kaka, Sain and Deva sons of Bhajo, as non-occupancy tenants. It was shown as Bara in the year 1884 and no rent was paid by any of these persons. This state of affairs continued up to 1910. In 1911/12, this land came within the Abadi Deh and it along with certain other Khasra numbers, was given a different Khasra No. 8268. The above named Kaka had a son Kharka and a daughter-in-law Shrimati Rakhi, defendant No. 4, the widow of Kharka, who pre-deceased his father. She sold the site in question to Chajju in June 1955 for Rs. 480/-. Since defendant Nos. 1 and 2 tried to interfere with the possession of Chajju, he, in April 1961, brought a suit, out of which this second appeal has arisen, against them and also impleading his vendor Rakhi, for perpetual injunction restraining the defendants from interfering with his possession. His case was that Rakhi and defendant Nos. 1 to 3 owned the site ABCD in equal shares and the site in question came, to the share of Rakhi in a private partition between the co-owners. He was the vendee from Rakhi and, therefore, entitled to remain in its peaceful possession as an owner.

(2.) The suit was resisted by only defendant Nos. 1 and 2, because their brother had settled outside India and he was proceeded ex parte. The main case of the defendants was that Rakhi was not the owner of the site in question and, therefore, she could not sell the same to the plaintiff.

(3.) On the pleadings of the parties, a number of issues were framed. But, in the present appeal, we are concerned only with one of them, namely, as to whether the plaintiff had succeeded in establishing that Rakhi was the owner of the suit property. Both the Courts below have found that it had not been so established and, consequently, the suit had been dismissed. Against this decision, Chajju has come here in appeal.