SHYAMSUNDER Vs. CHAND BAI

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for possession which has been decreed against him by both Courts below. The plaintiff respondent Girdharilal having died during the pendency of this appeal, his sons Manoharlal and three others have been substituted in his place.

(2.) THE case out of which this appeal arises has had a chequered history. The parties are admittedly descendants of a common ancestor. Kishenlal father of the defendant appellant Shyamsunder brought a suit for partition against the plaintiff in 1962 Samwat in the civil court of Thikana Banera. The parties referred the matter to arbitration as a result of which a decree based on an award was passed on Fagun Sudi 3 Smt. 1962 (i. e. , some time in 1905 A. D.) The award held among other things, with which we are not concerned, that that portion of the suit house which was built by Kishenlal and in which he resided was to go to him and the rest was to go to Girdharilal, plaintiff here. Unfortunately neither the arbitrators nor the court specified which, part of the property had been built by Kishen Lal or was occupied by him, and. therefore, to go to him. Be that as it may, the plaintiff took out execution of this decree and he received possession of two Talias (open pieces of land) and two rooms vide the report Ex. P-2 dated the 26th July, 1931. Kishenlal went up in appeal against that order which was dismissed by the mahedraj Sabha by its judgment dated the 19th December, 1931. Thereafter kishenlal died and Girdharilal continued his efforts for securing possession of the rest of this property in execution and was successful. Once again, Shyam Sunder, the present appellant, being son of the deceased kishenlal, went up in appeal to the High Court of the former State of Udaipur and this time he was successful. It was held by that High Court that the decree passed by the trial Court was not executable inasmuch as the exact portions which were to go to Kishenlal and Girdharilal respectively had not been specified therein and a direction was given that it would be open to the latter to bring a fresh suit to have such property specified by a decree of the Court. This decision was given on the 21st August. 1936. The plaintiffs case further is that in the meantime shyamsunder took forcible possession of the Talias and the rooms aforesaid in 1931, possession whereof had been made over to Girdharilal in execution proceedings vide Ex. P-2 dated the 26th July, 1931. In these circumstances, Girdharilal brought the present suit on the 19th June, 1945, on the allegations which I have set out above, and his case was that the apartments showed in yellow in Ex. P-5 Were the only ones in which Kishenlal used to live and which had been built by him and should go to him or his son shyamsunder according to the award, and that the former should be put in possession of the rest of the apartments which were marked in red on the same plan. The defendant resisted the suit. His main pleas were that he and his ancestors were the owners of the entire suit property and that the suit was barred by the doctrine of res judicata and further that the suit was barred by limitation. Both Courts below have decreed the plaintiff's suit. This is how the defendant has now come up in second appeal to this Court.

(3.) I may state at once that so far as the concurrent decision of the two Courts below is concerned as to which apartments of the suit property were built by kishenlal and in which he lived, that is a finding of fact, and it is not open to any further challenge in this second appeal, and I hold accordingly.