HAWA DEVI AND ORS. Vs. GANGARAM AND ORS.

JUDGEMENT

(1.) THE present second appeal has been filed by Smt. Hawa Devi w/o. Brahm Deo Nai along with appellant No. 2 Rameshwar s/o. Chunni Lal, who were defendants in the suit filed by the respondent - Ganga Ram and both are now represented by their respective legal representatives as with the long lapse of time in the chequered history of litigation, both Ganga Ram and Hawa Devi have since expired.

(2.) THE present second appeal itself was filed in this Court on 15/3/1994 and is being decided after 21 years, whereas, the present suit out of which the present second appeal arises itself was filed way back in the year 1972 on 2/5/1972 by the plaintiff - Ganga Ram, which Original Suit No. 243/72 - Ganga Ram vs. Hawa Devi & Rameshwar Lal for declaration of the title and possession of the suit shop in question came to be dismissed by the learned trial court of Munsif & Judicial Magistrate, Jodhpur City, Jodhpur on 16/9/1993. The plaintiff Ganga Ram and one Chhela Ram were real brothers and the present appellant Hawa Devi is the daughter -in -law of Chhela Ram, being wife of his son Brahm Dev. The brother Chhela Ram, as per the plaint averments, expired on 4/2/1957. According to the plaint averments, before his death there was a partition between Chhela Ram and Ganga Ram and the suit property in the present case namely; a shop situated on the southern side of the entire house of two brothers, fell in the share of plaintiff Ganga Ram and on the basis of said oral partition, both the brothers applied in the competent court for giving Patta on 27/8/1956, where the statements of Chhela Ram and one Moti Lal were recorded but the Patta of the respective shares could not be issued by the competent authority. The suit shop in question was in the tenancy of defendant No. 2 - Rameshwar, who was not related to this family, under the rent note executed in favour of plaintiff Ganga Ram on 6/8/1959. Smt. Hawa Devi filed a suit for recovery of rent against the tenant Rameshwar and also impleaded Ganga Ram as her agent as a defendant and the said suit filed under the Rent Control & Eviction Act, 1950 came to be decreed in her favour but the issue relating to title between Smt. Hawa Devi and Ganga Ram was not decided by the learned trial court and her right to receive rent from Rameshwar was upheld upto the High Court. Later on, the present suit No. 243/72 was filed by Ganga Ram s/o. Peer Dan Parihar against Smt. Hawa Devi and tenant Rameshwar for declaration of his title over the said suit shop and for possession of the shop in question, which suit came to be dismissed by the learned trial court against the plaintiff Ganga Ram, though the factum of partition between Ganga Ram and Chhela Ram was held to have taken place but the trial court held that the said factum of partition was not clearly proved by the plaintiff as to whether it was oral or in writing and whether the shop in question situated on the southern side of the house fell in the share of Ganga Ram. The relevant extract of the order dt: 16/9/93 of learned trial court on this issue is quoted below for ready reference: -

(3.) THE plaintiff - Ganga Ram being aggrieved by the same filed the first appeal before the learned Addl. District Judge, No. 3, Jodhpur being Appeal No. 5/93 - L.Rs. of Ganga Ram vs. Smt. Hawa Devi & Ors., which came to be allowed by the learned first appellate court on 16/2/1994 with the following observations and findings: -