SHESH MAL Vs. HARAK CHAND

JUDGEMENT

(1.) This second appeal arises out of a suit for possession, which has been dismissed by both the courts below.

(2.) It is no longer in dispute that the house property, which is subject matter of litigation between the parties belonged to the joint Hindu family of Sheshmal. It has been mentioned in the plaint that the said house situated in village Devria, Tehsil Jetaran in the District of Pali, was the ancestral house of the plaintiffs. According to the plaintiffs themselves Sheshmal migrated to Maharashtra and started residing in village Chandai in District Aurangabad, in the State of Maharashtra. The plaintiff's case is that the house in dispute was lying vacant, but five years prior to the institution of the suit the defendants, who were related to the plaintiffs as they came from the same stock, unlawfully entered the disputed house and occupied the same without any right. Thereafter, the defendant-respondents also obtained a patta in respect of the disputed house from the Panchayat Devria on March 8, 1959. The plaintiffs filed the suit on October, 21, 1964 and prayed therein that the possession of the house in dispute be restored to them and they may also be awarded mesne profits at the rate of Rs. 10/- per month, with interest at the rate of 6 per cent on the amount of mesne profits.

(3.) The defendants, Harakchand and Ganpatraj, did not contest the suit and ex parte proceedings were taken against them. Only defendant Sugan Chand resisted the suit and took two pleas in the alternative. In the first place, it was averred that Suganchand defendant and his son Dharamchand were in occupation and possession of the disputed house for more than 12 years and they had acquired ownership by adverse possession, on the basis of their peaceful, open and continuous possession over the disputed house for a period of more than 12 years. In the second place, it was pleaded by the defendants Sugan Chand and Dharam Chand that when they came to know that the earlier patta of the house in dispute was with the plaintiff-appellants, who were their relatives, an oral sale was made by the plaintiff-appellants in favour of the contesting defendants on June 14, 1958 for a sum of Rs. 99/- and that the contesting defendants paid a sum of Rs. 99/- to the plaintiff-appellants, who delivered the patta of the disputed house to the contesting defendants and also executed an unregistered deed of sale in favour of the contesting defendants on the same day. It was further pleaded that the contesting defendants were in possession of the house in dispute as owners thereof since June 14, 1958 and the plaintiff-appellants had no right, title or interest left in the disputed property thereafter. Thus the defendants claimed ownership rights on the basis of a unregistered sale deed alleged to have been executed by the plaintiff-appellants and the delivery of the original patta of the disputed house. The contesting defendants also got a patta in respect of the disputed house from the Gram Panchayat on March 8, 1959 in their favour. It was also alleged by the contesting defendants that they had invested a sum of Rs. 1900/- on the disputed house in repairs etc. The contesting defendants also took the plea that the suit was barred by time, as the plaintiff appellants were not in possession of the suit property at any time within 12 years of the date of institution of the suit.