JAMUNA PRASAD KESHARI Vs. ASHOK KUMAR JAIN

JUDGEMENT

(1.) This second appeal has been preferred by the defendants of Title Suit No. 302 of 1974. The aforesaid title suit was filed by the plaintiff-respondent and the trial Court decreed the suit. The defendants filed the first appeal which was dismissed and then this second appeal. The trial Court passed the judgment on 10th August, 1976 and the appellate Court passed its judgment on 8th May, 1986.

(2.) The case of the plaintiff-respondents in the Court below was that Holding No.304, having S.P. No. 3042 in Mohalla Rakabganj of Tekari Town, having an area of 6 decimals was orally purchased by the grand father of the plaintiffs in the year 1928 for Rs. 28. The vendor was Gauri Charan Lal, son of the recorded tenant. This purchase was made by Champalal in the Farzi name of his Bhagina Bala Bux. Bala Bux was mutated in the municipal records. However, Champalal owned and possessed holding No. 305 and, therefore, he amalgamated the holding Nos. 304 and 305 and opened urinal, Nali etc., on holding No. 304 and opened exit on holding No. 304. Rest of the land of holding No. 304 was left open for the purpose of constructing shops. Champalal continued in his possession and in the year 1938, he got his name mutated in place of Bala-Bux. The receipts for both the holdings were jointly issued by the Municipality and Champalal paid rent for both the holdings together. Moreover, in course of time, holding No. 304 became Parti and so no rent was paid and since both the holdings were mutated in favour of Champalal, receipts for both the holdings were issued jointly. However, in the year 1967(10-1-1967), Chaturbhuj Prased, one of the sons of Gauri Lal created a sham sale-deed in favour of defendant Nos. 2 and 3 and then the defendants started interfering with the possession of the plaintiffs and so this led to a proceeding under Sections 144 and 145 of the Code of Criminal Procedure. This proceeding was decided against the plaintiff and, hence, the suit was filed for declaration of title and recovery of possession.

(3.) The case of the defendant-respondent was that the plaintiffs' oral purchase was invalid because in the plaint, he set up a case of oral purchase accompanied by memorandum of sale whereas in the proceeding under Section 145, Cr. P.C., he referred to a Khisla Kebala. Moreover, the municipal record could not confer title upon the plaintiff or plaintiff's ancestor and so the plaintiffs had failed to prove their title. The proceeding in the proceeding under Section 145 Cr. P.C. was rightly decided and simply Gaurilal was not the sole owneV of the property in the year 1928 because his elder brother was alive and, therefore , any question of oral sale by him did not arise and, hence, he could not confer any title upon the plaintiffs' ancestor.