DHOOL SINGH Vs. BARDHU BAI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal directed against the appellate judgment of the Senior Civil Judge, Baran dated 2-5-64 affirming the decree dismissing the suit by the Munsif, Baran and arises out of a suit for possession of a portion of a house situated in village Antah, district Kota. According to the plaintiff, the house in question, in a portion of which defendant-respondent Kishore Singh, now represented by his legal representatives, was living belonged to one Nathaji. Nathaji had a son Pannalal who died in 1932. He had two daughters. Dhool Singh, the plaintiff, is the son of one daughter and Kishore Singh, defendant, was the son of another. Pannalal had a son Dhannalal who died during the life time of his father Pannalal. Pannalal was survived by his widow Kesar Bai. Kesar Bai was alleged to have gifted the house in question to the plaintiff Dhool Singh and the same was evidenced by a registered gift deed Ex. 1. On 25-10-1944 the plaintiff' Dhool Singh had sold a portion of the house to one Kadar Bux by a registered sale deed Ex. 2 on record. The plaintiff proceeded to say that in 1945 or 1946 the defendant Kishore Singh who was his first cousin was permitted by him to live in a portion of the house, gifted to him by Kesar Bai as a licensee. His case was that a document had been written to that effect in favour of the defendant. The plaintiff wanted to have possession of this portion of the house from the defendant, but as the defendant was not vacating it he filed the suit in the court of Munsif, Baran on 6 5-59.

(2.) THE defendant denied that the disputed portion of the house belonged to the plaintiff or that he had taken it from him as a licensee. He asserred that this portion of the house belonged to him. According to him, the portion of the house sold by the plaintiff to Kadar Bux was given to his mother by his maternal grand father at the time of her marriage with the defendant's father in 'kanya Dan' but as this portion had been unlawfully sold by the plaintiff to Kadar Bux the parties came to a settlement and in lieu of the portion sold by the plaintiff the portion in dispute was made over to the defendant and thus the defendant was living in that portion as an owner.

(3.) I have considered the matter. The parties had fought the litigation on the question of title alone. Whereas the plaintiff claimed that on account of a gift in his favour by Smt. Kesar Bai, he was the owner of the property, the defendant asserted that the portion sold by the plaintiff to Kadar Bux had been given in 'kanya Dan' to his mother and on account of the unauthorised alienation the disputed portion was given by the plaintiff to the defendant in exchange. It was the plea of the plaintiff that the defendant was in permissive possession. In answer to that the defendant only asserted his own title to the property, but did not set up any case in the alternative that even if he were a licensee the licence would be irrevocable on account of the defendant having raised a construction of permanent character on the property.