DEVILAL Vs. RATANLAL

JUDGEMENT

(1.) This is a plaintiffs second appeal in a suit for declaration and injunction, which was decreed by the trial court but on appeal dismissed by the learned District Judge Udaipur, by his judgment dated the 25th January, 1961.

(2.) The material facts leading upto this appeal may be shortly stated as follows. The house in dispute is situate in Mohalla Koliwara in Udaipur City. It is admitted between the parties that it originally belonged to one Bhera Koli. The plaintiffs are the representatives of the Koli community, and brought this suit in a representative capacity with the permission of the court. Their case was that Bhera had mortgaged it with possession to one Pyar Chands ancestors in Smt. 1947 for Rs. 181/ -. Their case also was that Bhera had willed away this property to the caste Panchayat of Kolis. Consequently the Panchayat had redeemed the mortgage from Pyarchand on Fagun Sudi 3, Smt. 1990 corresponding to some time in 1933 A. D. and got into possession of this property. It is further alleged that they had made constructions on this property at a cost of Rs. 1900/ -. In the meantime defendant Ratanlal had obtained a decree for possession of this very property against one Deokishan on the 22nd February, 1947. Ratanlal applied to obtain possession of the same in execution of that decree. The plaintiffs raised an objection under O. 21, r. 97 C.P.C. This was rejected by the execution court. Consequently they instituted the present suit under O. 21, r. 103 C.P.C. praying that a declaration be granted in their favour that they were the owners of the suit property and that the decree obtained by the defendant Ratanlal against Deokishan was not binding on them and they also prayed for injunction restraining the said defendant from interfering with their possession.

(3.) The defendant resisted the suit. As already stated, he admitted that the suit house did belong originally to Bhera Koli but he denied that Bhera had mortgaged this property to the ancestors of Pyarchand or that he had made any will in favour of the caste Panchayat or further that the latter had redeemed the mortgage from Pyarchand or still further that they had spent any money in improving the house. The defendants case, put in a nut -shell, was that Deokishan from whom he had purchased it was the owner of the house, he being the heir -at -law of the deceased Bhera.