VITHALDAS Vs. MOHANLAL

JUDGEMENT

(1.) THIS is a Civil Second Appeal in a suit for possession. The plaintiff-appellant filed the suit on 26th May, 1958 in the court of the Civil Judge, Gangapur alleging that the Nohra the details of which are given in para No. 1 of the plaint situated in the town of Sawai Madhopur belonged to Lahrinarain of Jaipur and that the defendant-respondent Mohanlal was in occupation thereof with the permission of Lahrinarain since Smt. 1989 or 1990. The plaintiff further alleged that he had purchased the said Nohra along with three shops from Lahrinarain for Rs. 4,500/- on 30th December 1956 under a registered sale-deed (Ex. 1 ). He asked the defendant Mohanlal to vacate the Nohra but on his refusal the suit was filed for possession of the said Nohra. Mohanlal pleaded in his written statement that the said Nohra belonged to his brother Jagdish Prasad who was in possession thereof. Jagdish Prasad was then made a defendant in the case. Jagdish Prasad pleaded that Lahri Narain had agreed to sell to him the said Nohra on 7th March, 1956, for Rs. 1,500/- and had executed an agreement of sale (Ex D/l) on the said date. He also pleaded that at the time of the agreement he had paid Rs. 1. 200/-to Lahri Narain and thereafter paid Rs. 50/- on 3rd August, 1956 and further Rs. 250/- on 3rd December 1956 to Lahri Narain. The trial court dismissed the suit accepting the pleas raised by Jagdish Prasad and giving him the benefit of sec. 53-A of the Transfer of Property Act. The plaintiff filed an appeal to the District Judge, Bharatpur. The learned District Judge dismissed the appeal and maintained the judgment and decree of the trial court. The findings of the learned District Judge are (1) that both the defendants were jointly in possession of the disputed Nohra; (2) that Rs. 1,200/- were paid by Jagdish Prasad as part of consideration to Lahri Narain on 7th March, 1956 at the time Ex. 1 was executed and that the remaining amount of Rs. 300/- was paid as alleged on the dates mentioned by Jagdish Prasad in his written statement and (3) that the plaintiff had the knowledge about the contract or sale between Lahri Narain and Jagdish Prasad and its part performance.

(2.) IN this second appeal on behalf of the plaintiff, it is contended by the learned counsel for the appellant that the finding of fact that Jagdish Prasad was jointly in possession with Mohanlal was neither pleaded by Jagdish Prasad nor proved by the evidence on record. It is contended that Mohanlal was in sole possession of the Nohra in dispute and that Jagdish Prasad never obtained the possession of the said 'nohra' either before or after the date of the execution of Ex. B/l. The lower appellate court has, after scrutinising the evidence, come to the conclusion that both Jagdish Prasad and Mohanlal who were brothers, were in occupation of the 'nohra' even before the date of the agreement. This is a finding of fact which cannot be challenged in second appeal. It may also be mentioned that in Ex. B/l it has been specifically noted that Jagdish Prasad was in occupation of the 'nohra' since a long time and that he had put up a flour mill and had also made certain constructions and carried out the repairs in the 'nohra'. It may also be mentioned that the flour mill that was run in the 'nohra' was in the name of Jagdish Prasad Radhey Shyam. It may be that Mohanlal was mostly in charge of running the flour mill but it cannot be said that the finding in this case that both Jagdish Prasad and Mohanlal were in possession of the 'nohra' in dispute was not based on any evidence on record. A finding of fact based on evidence on record cannot be upset in second appeal on the ground that this finding is based not on the proper appreciation of evidence on record. I do not find any force in this contention.