GAURI SHANKER SAH Vs. RAMCHANDER SAH

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for a declaration that the house including the site and Sahan appertaining thereto specified in schedule No. 2 of the plaint as well as the moveable properties kept in that house, as mentioned in schedule No. 3 of the plaint, belonged to them and that they were entitled to recover possession thereof by evicting the defendants therefrom. The plaintiffs made a prayer for allowing mesne profits and for permanently restraining the defendants from interfering with their possession after the granting of the said declaration. In the alternative, the plaintiffs asked, for a decree for a sum of Rs. 1000 as the price of the moveable properties specified in schedule No. 3, in case they were not able to get a decree for recovery of possession of those moveables.

(2.) The plaintiffs' case was that one Mathura Ram left two sons, Gauri Shanker Sah (plaintiff No. 1) and Bhagwan Lal. Plaintiffs 2 to 5 are the sons of plaintiff No. 1, plaintiff No. 6 is the son of plaintiff No. 3, and plaintiff No. 7 the wife of plaintiff No. 1. Ramrati Kuer was the widow of Bhagwan Lal. Mathura Ram had a sister named Janki Kuer and she was married to Bisheshwar Sah son of Gurudeyal Sah of village Godana. Bisheshwar had no issue, either male or female, and so he kept Bhagwan Lal with himself. He executed a will in respect of his moveable and immoveable properties on 2-7-1893 and this will was a registered one. He provided in that will that he would remain the absolute owner of all the properties till his death but, after his death, his wife, Janki Kuer, would remain in possession of those properties; but she would have no right to transfer them. There was a further provision that after the death of Janki Kuer, Bhagwan Lal would become the absolute owner in respect of those properties and, after the death of Bhagwan and his wife, the son of Bhagwan would be the absolute owner of those properties. But if Bhagwan as well as his male issue would die without leaving behind any male issue, then the agnates of Bisheshwar Sah would be the absolute owners of those properties. The plaintiffs alleged that the last clause of the will giving the properties to the agnates was repugnant and void and it could not curtail in any manner the absolute interest given to Bhagwan Lal in dear and unambiguous terms. After the death of Bisheshwar Sah and Janki Kuer, all his properties came in possession of Bhagwan Lal as an absolute owner and he obtained a probate of the said will from the District Judge of Saran on 8-7-1901

(3.) The case of the plaintiffs further was that apart from other houses, orchards and lands, Bisheshwar Sah (was?) the owner of a north facing residential house in village Godana, covering an area of about 1 katha 10 dhurs described in schedule No. 1 of the plaint. There was a Parti land measuring about 2 kathas adjacent east of the said house and that land belonged to one Jagdish Bhagat alias Jaggu Bhagat, but it was purchased by one Ramnandan Gir in a Court sale held in an execution case, and the said purchaser sold that land to Bhagwan Lal orally for a sum of Rs. 50. Ramnandan Gir executed an unregistered sale deed in respect of that land in favour of Bhagwan Lal on 25-12-1911. There was another piece of land measuring about 15 dhurs adjacent south of the aforesaid house and that land belonged to one Ganaur Mahto, but he sold it to Bhagwan Lal orally for a sum of Rs. 15. In this manner, Bhagwan Lal came in possession of those lands lying adjacent to east and south of the house of Bisheshwar Sah and he made some extensions in the said house towards the east by making certain constructions, He further constructed a verandah and a latrine on the southern Parti land. The house and the Sahan including the original house of Bisheshwar as well as the subsequent acquisitions and additions made by Bhagwan Lal were described in schedule No. 2 Bhagwan died on 15-9-1925 and then his widow, Ramrati Kuer, came in possession of that house and other properties of Bisheshwar, except the orchard and the land which were dedicated orally by Bisheshwar for Dharamshala and celebration of Annakut. Ramrati Kuer executed a gift in respect of all the properties on 11-4-1958 in favour of plaintiff No. 4, as a result of which the plaintiffs came in possession of those properties as donees. Ramrati died on 13-4-1958. The plaintiffs were the preferential heirs of Bhagwan Lal and Ramrati Kuer, and in that capacity as well they were the owners of the estate which at one time belonged to Bhagwan and his widow. Plaintiff No. 1 was duly recorded in the municipality in respect of the disputed house which was given to him by Ramrati Kuer. The defendants (agnates of Bisheshwar Sah) were anxious to usurp the properties left behind by Bisheshwar and they embarked on a frivolous litigation with Ramrati Kuer and plaintiff No. 1 in the year 1927 which continued even up to the High Court, but they were unsuccessful throughout. On 10-7-1958 defendants 1 to 5 forcibly entered in the disputed house in which plaintiff No. 7 alone was living on that date and they took forcible and wrongful possession of the moveables kept in that house. Plaintiff No. 2 was seriously assaulted by defendants 2 to 5 and there was a criminal case against them which ended in acquittal on 31-3-1959. This emboldened them and they continued their possession wrongfully. Apart from the title referred to above, the plaintiffs had acquired title in respect of the disputed properties even on the basis of adverse possession in respect of those properties. The plaintiffs thus filed the suit on 11-7-1959 for the reliefs indicated above.