GIRRAJ PRASAD Vs. NANDOO

JUDGEMENT

(1.) JUDGEMENT :- This is defendant's second appeal against the judgement and decree passed by Civil Judge, Bharatpur by which he had dismissed the appeal filed by Chameli against the judgement and decree of Munsiff Bayana and the appeal filed by Shri Handoo was accepted and the suit of the plaintiff was decreed.

(2.) The plaintiff respondent No. 1 brought the present suit for declaration, injunction and possession in respect of a portion of a house situated at Bayana on the allegations t hat the said house belonged to his father Kishorilal who died on 27th April, 1956. Since he is the only heir of his father, he becomes the owner of the suit property after the death of his father Kishorilal. It has been further alleged in the plaint that Chameli, appellant No. 1 who is the grand mother of the plaintiff and widow of Kanhaiyalal was staying in the suit property since the time of his father and she started claiming to be the owner of the property w.e.f. 5-12-1962 when she allegedly executed a will in favour of the respondent No. 2 who was impleaded as defendant No. 5 in the suit and she had permitted other respondents to live in the said house. Since these respondents appellants did not allow him to enter the house and since they were damaging the property and reducing its value, he filed this suit seeking for declaration for the will to be of no effect. The suit was contested by the respondents. Defendants Nos. 1, 2, 4 and 5 filed a joint written statement and defendant No. 3 filed a separate similar written statement. The defence taken was that defendant No. 1 Smt. Chameli was staying in a portion of the suit property consisting of one Kotha and a Tibara in front of it since the time of death of her husband. It has been further asserted in the written statement that the defendants Nos. 2 to 4 acquired title by adverse possession on the open land on the east of the said property as their father Shankarlal had occupied the said open land since last 25 years and has constructed building thereon and the defendants Nos. 2 to 4 have been residing in the said property. It has been further asserted that she has become owner of the portion consisting of one Kotha and Tibara in front of this and the suit is barred by time. It has also been stated that she had filed a suit for maintenance against the plaintiff and a decree for maintenance was also granted in her favour and the same was being executed against the plaintiff and hence he has filed the suit to harass defendant No. 1 on the pleadings of the parties, the learned trial Court framed as many as 20 issues and after recording the evidence and hearing the parties, it decreed the suit of the plaintiff in part and held that plaintiff was entitled for declaration of half share of the disputed property. Against the said judgement of the trial Court, both the parties filed appeals and the learned First Appellate Court dismissed the appeal filed by Smt. Chameli, defendant No. 1 and allowed the appeal filed by Handoo and decreed the suit of the plaintiff in toto and held that the plaintiff is the owner of the disputed property and defendant No. 1 had no right to transfer the suit property in any manner and further the plaintiff was entitled to recover the possession from the defendants and defendant No. 1 was restrained from alienating or transferring the possession of the property to any one. Against this judgement and decree, the present appeal was filed by Smt. Chameli and other defendants.

(3.) During the pendency of the appeal, defendant No. 5 Girraj Prasad who was arrayed as respondent No. 2 was transferred as an appellant. After the death of Smt. Chameli, since her legal representatives were already on record, the name of Smt. Chameli has been deleted from the array of appellants. Thereafter, Girraj Prasad has also expired and his L. Rs. have come on record.