MAHINDRA SINGH Vs. CHANDER SINGH

JUDGEMENT

(1.) These two second appeals arise out of two appeals preferred before the Court of appeal below, and have been heard together with the consent of the parties, as they arise out of one and the same suit.

(2.) S. A. 730 of 1950 is by the plaintiffs, arising out of Title Appeal 83/6 of 1948/50, preferred by defendant 5 in the matter of cost only, which was allowed by the Court of appeal below, and the decree for cost awarded against defendant 5 was set aside. S. A. 771 of 1950 is also by the plaintiffs arising out of Title Appeal 91 of 1948, allowed by the Court of appeal below, reversing the decision of the first Court, and dismissing the plaintiffs' suit.

(3.) The facts material for determination of the present appeals may briefly be stated thus: The suit, out of which the present appeals arise, was originally instituted by Mr. M. Nunawati on 27-1-45 as plaintiff No. 1 for recovery of possession of the disputed properties, of which the last male-holder was Awadh Behari Singh, who died in Chait 1349 Ps., corresponding to the year 1942. The plaintiffs' case was that Awadh Behari, her brother, died issueless, and she was his sole surviving sister, out of his four sisters, she impleaded Mahinder Singh, the present plaintiff No. 1 and appellant No. 1, in both the appeals, as defendant 7, on the allegation that he was the only son of Ramwati Kuer, another predeceased sister of Awadh Behari. Original plaintiffs 2 and 3 were transferees from Musst. Nunawati, but they having died during the. pendency of the suit were substituted by their heirs, the present plaintiffs 2 and 3. Defendant 3 was" son & defendant 4 grandson of Mt. Sonawati, one of the sisters of Awadh Behari, who was married to Ramasray Singh. The plaintiffs admitted that Sonawati was one of the sisters of Awadh Behari and was married to Ramasray Singh, but they alleged that she died shortly after her marriage, and thereafter Ramasray married another lady, and begot on her defendant 3, and Harekishun Singh, father of defendant 4. These defendants 3 and 4 were described as defendants 2nd party in the suit. Defendants 1 and 2 who were described as defendants first party, were transferees from the defendants 2nd party. Defendant 5, who was described as defendant 3rd party, was made a party to the suit on the allegation that he claimed to be bharnadar of some of the suit plots under a bharna deed dated 18-7-1890 and also claimed certain other plots on the basis of an oral purchase. The plaintiffs, however, alleged that the bharna bond had been redeemed by Awadh Behari, and that he did not sell any land to defendant 5.