MAHABIR RAM Vs. SHIVA SHANKER PRASAD

JUDGEMENT

(1.) This application in revision by defendant No. 1 is directed against the order of the learned Munsif refusing him (defendant No. 11 the permission to cross-examine the witnesses of the plaintiffs on the question of title to the house in suit and the validity of service of the notice under Section 106 of the Transfer of Property Act.

(2.) The facts giving rise to this application are these. The opposite party Nos. 1 to 3 (plaintiffs) filed a title suit against the petitioner for recovery of arrears of rent and for evicting him from the house bearing holding No. 117 in Ward No. 10 of the Gaya Municipality The case of the plaintiffs was that the said house was allotted to Bipat Ram, father of plaintiffs 1 and 2 in a private family partition in the year 1933 and after the death of Bipat Ram, it was inherited by his three sons, Shiva Shankar Prasad, Hari Kishun Das and Sarju Prasad in equal shares. The right, title and interest oi Sarju Prasad was sold in the year 1956 in Execution Case No, 1100 of 1656 in satisfaction of a decree obtained by one Shyammani Devi and the said interest was purchased by Gaya Prasad Dubey. On 20-6-1962 Gaya Prasad Dubey sold his interest in the said house to Phool Kuer, plaintiff-opposite party No. 3 (wife of plaintiff opposite party No. 1). Defendant No. 1 (petitioner) was a tenant of the plaintiffs in the said house, but he failed to pay the rent and thus the plaintiffs, had the right to evict him.

(3.) The petitioner contested the suit on the grounds inter alia that the said house belonged to Sarju Prasad alone and his interest was purchased by him (the petitioner) in the name of Gaya Prasad Dubry, as he (the petitioner) had filed an application for being declared as an insolvent; in other words. Gaya Prasad Dubey was the benamidar and he had no real title in respect of the said house. In fact, Gaya Prasad Dubey was the Karpardaz of the petitioner and he was entrusted with the sale certificate for getting the petitioner's name mutated in the Municipality but instead of taking steps in that direction, he fraudulently executed a sale deed in favour of Phool Kuer. The petitioner thus claimed to be the full owner of the house in question and asserted that he was not a tenant of opposite party Nos. 1 to 3. The petitioner being the owner, there was no question of payment of rent and any default by him