BHURI BAI Vs. MANOHARLAL GANERIWALLA

JUDGEMENT

(1.) This appeal has been filed by the plaintiffs whose suit had been decreed by the trial court, whose judgment arid decree have been set aside by the court of appeal below. The plaintiffs had instituted Title Suit No. 340 of 1955 in the Court of the Munsif of Jamshedpur, for evicting defendant No. 5 from the disputed house, describing him as the tenant. The suit was decreed. Thereafter, the plaintiffs levied Execution Case No. 151 of 1960. Defendants Nos. 1 to 4 filed an objection in the execution case, alleging that they were in possession in their own right and that they were not liable to be evicted in execution of the decree obtained by the plaintiffs against defendant No. 5. That claim case was allowed. Hence the plaintiffs have instituted this suit for declaration of their title to and for delivery of possession of the disputed house, which is really a portion of a house, as described in schedule A of the plaint.

(2.) In order to appreciate the respective cases of the parties, the following facts have to be stated. The property had at one time belonged to one Bhagwan Das Agarwala. He had a son named Rameshwar Lal, who bad predeceased his, father. Although I have stated that the disputed house had belonged to Bhagwan Das Agarwala, the question whether it was his separate property or whether it had belonged to the joint family consisting of Bhagwan Das and his son will be considered hereafter. The plaintiffs alleged that Rameshwar Lal had adopted one Satyanarain Khirwal as his son. It was said that Bhagwan Das had died in or about 1945, leaving behind his widow named Mahadei, the widow of Rameshwar Lal named Jaidei, and Satyanarain Khirwal, being the adopted son of Ramesh Lal. According to the plaintiffs, after the death of Bhagwan Das, bis property had devolved upon Mahadei and Satyanarain, and for the payment of Bhagwan Das' debts, Mahadei and Satyanarain sold the disputed property to the plaintiffs on the 4th September, 1952, for Rs. 12, 000. The disputed property was in actual occupation of a monthly tenant and it was alleged that defendant No. 5, named Basant Sao had entered into a fresh agreement with the plaintiffs to remain in possession as a monthly tenant under them. But, as this tenant had stopped paying rent, the plaintiffs had to institute Title Suit No. 340 of 1955, with the result already indicated. It was alleged that in the execution proceeding, defendant No. 1 bad produced a sale deed purported to have been executed by Jaidei and her daughters named Panna Devi and Rukmini Devi. That is to say, according to the plaintiffs they had purchased the property from Mahadei and Satyanarain, whereas the contesting defendants' case was that they had purchased the property from Jaidei and her daughters. The case of the contesting defendants was that Rameshwar Lal had never adopted Satyanarain as his son and when Bhagwan Das had died, his property had devolved upon Mahadei and Jaidei. It was alleged that Satyanarain had set himself up as an adopted son of Rameshwar Lal in order to grab certain properties and it was alleged that Satyanarain had taken Mahadei to the house of his relations at Chaibassa and had got a sale deed executed and registered in favour of the plaintiffs on false representation, keeping Mahadei ignorant about the contents of the document. It was contended that the plaintiffs' sale deed was vitiated by fraud and no consideration had passed. It was also alleged by these defendants that defendant No. 5 had vacated the suit premises and had made over possession to Jaidei in 1955, and after Mahadei had died in 1957, the defendants had purchased the disputed portion of the house for Rs. 10000, by a sale deed executed on the 16th January, 1960, by Jaidei aad her daughters.

(3.) The trial Court accepted the plaintiff's case of Satyanarain's adoption as Rameshwar's son and held that Mahadei and Satyanarain had right to transfer the property te the plaintiffs, who got possession of the same as transferees. The Court of appeal below has held that the plaintiffs have failed to prove that Satyanarain had been adopted by Rameshwar Lal as his son. Thereafter, the Court of appeal below has held that the sale deed in favour of the plaintiffs had been executed by Mahadei for legal necessity and so the plaintiffs can follow her share, by bringing a suit for partition. The Court of appeal below hag stated, further, that Mahadei and Jaidei had taken widow's estates as tenants-in-common and that the net result is that the plaintiffs have acquired title to the interest of Mahadei, if any, in the disputed property, which they can get partitioned under a regular partition suit. On this ground the decree of the trial Court has been set aside and the suit has been dismissed.