NAND KISHORE Vs. PRABHU NARAIN

JUDGEMENT

(1.) Civil Suit No. 11 of 1959 filed by Prabhu Narain respondent No. 1 has been decreed by the Civil Judge. Jaipur City, and upheld by the Additional District Judge No. 3, Jaipur City, (Civil Appeal No. 48/1970). The first and the second defendants have come in second appeal in this court.

(2.) On 3-1-59 Prabhu Narain instituted the suit under appeal in the court of Civil Judge, Jaipur City, against Nand Kishore. his father Radha Vallabh and four others who are tenants in the suit property. The suit property is a haveli facing North situate in Surajpole Bazar, Chowkari Topkhana Hazuri. Jaipur. This house originally belonged to one Har Bux who died on 23-9-1949. One Govind Nara-in obtained a decree against Prabhu Narain as legal representative of Har Bux. He got the suit haveli attached in that decree. A claim was put up by Nand Kishore, who was at that time minor, through his father, Radha Vallabh under Order 21, Rule 58, Civil P. C. It was claimed that the suit property was in his possession and he was son of deceased Har Bux. This claim was allowed by the Execution Court on 15-7-50. The plaintiff then instituted a suit on 14-7-51 under Order 21. Rule 63, Civil P. C. in the court of Munsif (East). Jaipur seeking declaration that he was the adopted son of Har Bux, and the suit property was liable to be attached and sold in the decree against him obtained by Govind Narain This suit was later on found to be under-valued and it was returned to be represented in the proper court. The suit was then filed in the court of Civil Judge, Jaipur, which was later on transferred in the court of Civil Judge, Jaipur District. That suit was decreed on 31-7-54 and it was held that Prabhu Narain was the adopted son of deceased Har Bux and the property could be attached and sold in the decree against him which was obtained by Govind Narain. The appeal on behalf of Nand Kishore was dismissed on 16-12-1957. There was a second appeal in the High Court. This appeal was pending in the High Court when the present suit was filed. According to the plaintiff the limitation to recover possession was about to run out and as such he filed the present suit without waiting for the final decision of the High Court. It is no longer in dispute that Nand Kishore's appeal was dismissed by the High Court as well on 30-1-63. It was also claimed by the plaintiff that Radhey Shyam. defendant No. 3, Satya Narayan defendant No. 4, Madan Lal defendant No. 5, and Allanoor defendant No. 6, were the tenants in some portions of the suit property, and defendant No. 1 had recovered during six years preceding the institution of the suit Rs. 360 @ Rs. 5 per month from each one of them. The defendant Nand Kishore was also alleged to be in possession on some part of the suit property. Plaintiff claimed damages for use and occupation of that part of the property @ Rs. 20 per month. He thus claimed Rs. 2.880 as mesne profits from the defendants Nos. 1 and 2. Besides he prayed for perpetual injunction against the defendants Nos. 3 to 6 not to pay rent henceforward to the defendants Nos. 1 and 2.

(3.) Nand Kishore, the principal defendant resisted the suit by his written statement dated 17-12-1959. It was contended by him that Prabhu Narain was not the adopted son of Har Bux nor was he in fact adopted. He admitted the earlier proceedings relating to Order 21. Rule 58, Civil P. C. and eventual suit proceedings at the instance of Prabhu Narain under Order 21, Rule 63, Civil P. C He however submitted that the appeal was pending in the High Court and as such the matter was subjudice. He denied plaintiff's claim to the recovery of possession and mesne profits. It was also pleaded that the plaintiffs' suit for mesne profits for six years is not within time. He submitted in para 7 of the written statement that the suit has been undervalued. By way of additional pleas he reiterated that he was the adopted son of Har Bux. He referred to the decree dated 1-3-1948 which he obtained against Har Bux declaring that he was the adopted son of Har Bux. Reference of adoption deed dated 15-3-48 was also made. He further pleaded that the first storey of the house on the death of Har Bux was not fully constructed. He made improvements, got the house plastered, the floor done, and got the roof put up. He is also alleged to have constructed a bath-room, a lavatory, and a tin shed in the second storey. According to him the valuation of the suit property in 1951 was Rs. 4951/15 and its valuation in 1959 when the suit under appeal was filed, was Rs. 12,387/2/- as such there is encumbrance of Rs. 7,435/3/-on the suit property and without payment of the same the plaintiff's suit is not maintainable.