LAKSHMAN NAIK Vs. SUSHILA SWAIN

JUDGEMENT

(1.) This appeal has been filed by the defendant. It arises out of a suit filed by the plaintiff-respondent for declaration of her title to and for recovery of possession of shop No. 16, line No. 2 in Bistupur Market, along with certain furniture & articles of the shop. This suit was decreed by the trial court and on appeal, the decree has been affirmed.

(2.) The relevant facts for decision are as follows: The plaintiff alleged in the plaint that defendant No. 1 was her brother & defendant No. 2 was her son. According to the plaintiff, her husband was an employee of the Tata Iron Steel Company & her family lived in Jamshedpur. In 1938 or 1939, defendant No. 1 had come from his native place and had requested the plaintiff to advance him some money so that he could start a pan shop. The younger brother of the plaintiff's husband had a number of pan shops and at the request of the plaintiff's husband, he gave up two shops to defendant No. 1, who started a Pan shop taking a loan of Rs 500 from the plaintiff Then, the Company wanted to demolish some tinned shops so they offered shop No. 17 in line No. 5 to defendant No. 1. This offer was accepted by him and he shifted his shop there. Later on. this shop was again given up for shop No. 16 in line No. 2 from April 1958. Defendant No. 1, thereafter, wanted to close down his business at Jameshedpur and as he was unable to return the advance made by the plaintiff, he executed a deed of relinquishment in her favour, giving up all his right, title and interest in the shop and delivered possession of shop No. 16 to the plaintiff. Thereafter, the plaintiff started Pan shop in this particular shop. As this defendant had sold away the furniture and the utensils of this shop., the plaintiff had to purchase new furniture and utensils at time when defendant No. 1 had delivered possession of the shop He bad also given old rent receipts and other papers. The plaintiff, thereafter, put defdt. No. 2 in charge of the shop, but thereafter, there was a dispute ending in a proceeding under Section 145 of the Code of Criminal Procedure, which was decided against the plaintiff. It was held therein that defendant No. 2 was in possession of the shop. Two separate written statements were filed by the defendants. The case of defendant No. 1 was as follows: It was alleged that this defendant had got settlement of shop No. 16 and all allegations of the plaintiff as to how this shop was settled with defendant No. 1 were denied as false. According to this defendant he was in possession after the settlement until defendant No. 2 had come in possession. With respect to the deed of relinquishment. the case of defendant No. 1 was that he had executed it at the request of his sister on a promise of payment of Rs. 500. but this amount had never been paid. According to this defendant, the plaintiff had never come in possession of the shop and the rent receipts were said to have been stolen away by the plaintiff in the absence of defendant No. 1. Defendant No. 2 supported the case of his uncle as against the claim of his mother

(3.) Upon these contentions of the parties, the court of appeal below has come to the following conclusions. The plaintiff's case that she had advanced Rs. 500 to defendant No. 1 for starting a shop has not been accepted. The learned Subordinate Judge has held that the plaintiff's contention in this respect was incongruous. But, the learned Judge has concluded that defendant No. 1 had made a declaration in May 1958. which is the basis of the plaintiff's case This transaction has not been accepted as a transfer, but it has been held to be a declaration made by defendant No. 1 that the disputed property had always belonged to the plaintiff. It has further been held that after this declaration, or relinquishment, or disclaimer, made in May 1958, possession of the shop had been given to the plaintiff, although the plaintiffs evidence has been characterised as not very satisfactory. Nevertheless, it has been held that defendant No. 1 ceased to have any interest in the shop after the 30th, May, 1958 and the plaintiff came in possession of the shop and all the papers relating thereto. The learned Judge has also come to the conclusion that defendant No. 2 was running the shop on behalf of the plaintiff and not on behalf of defendant No. 1 that he had continued in possession even after executing the document dated the 30th, May, 1958 has been negatived. On these findings the decree of the first court has been upheld