SOHAN LAL Vs. NATHMAL

JUDGEMENT

(1.) This appeal is directed against the judgement and decree passed by the District Judge Banswara dated 24th March, 1976 whereby the plaintiff-respondent Nathmal's suit under O.21, R.63 C.P.C. was decreed. The defendant appellant had obtained a decree against the defendant 2 Naginlal S/o Nathmal. The plaintiff decree-holder Shri Sohan Lal in execution of the decree got a house attached in respect of which an objection petition was filed under O.21, R.58 C.P.C. by the objector Nathmal but the same was dismissed. Hence he filed the suit under O.21, R.63 C.P.C. with the allegations that the site over which the house was constructed by the plaintiff, was purchased by his grand father Keshvaji vide Patta No. 40 of 1911 Niti 10 Samvat year 1967. Out of that land, land measuring 8 feet was given to Jotkaran S/o Keshvaji and over the rest of the land the plaintiff constructed the house in the year 1941. His son Naginlal never remained in possession of the house. The house was constructed by the plaintiff by his own earnings and on the door of the house the letters N.P.K. are engraved. Prior to the construction of the house, there was a Kacha Jhopri during the time of his father which was demolished and the house was constructed by him. The half eastern portion of the house was got attached by the decree-holder defendant 1. The house in question is not liable to be sold in execution of the decree obtained by defendant 1 against defendant 2. It was also alleged in the plaint that the plaintiff's father Pannalalji was Tehsildar Kushalgarh and his father died when he was only 1 years old. The plaintiff's uncle Shri Manalal used to live in his separate house. His parents left sufficient property at the time of their death. The plaintiff remained in the care of his uncle who shifted to the plaintiff's house and his uncle gave away his own house to his other brother. The plaintiff therefore prayed that it may be declared that the house in question is the property of the plaintiff and is not liable to be sold in execution of the decree and the house property be released from attachment. The defendant 1 submitted his written statement and denied the allegations of the plaint. It was alleged that the property belongs to the judgement debtor and the same is in his possession. The half portion of the property was the share of Manalal. Manalal remained in that particular portion till his lifetime and after his death his widow Champabai lived in that portion. That portion was bequeathed by Champabai in favour of Naginlal defendant 2 and after the death of Champabai Naginlal became the owner of that property. No written statement was filed by defendant 2.

(2.) On the pleadings of the parties the following issues were framed :-

(3.) At the trial the plaintiff Nathmal examined himself as P.W. 1 and produced Kodarlal P.W. 2, Chiranjilal P.W. 3 and Acharatlal P.W. 4. In rebuttal the defendant 5 examined himself as D.W. 1. The learned District Judge decided issues 1 to 4 in favour of the plaintiff and consequently decreed the plaintiffs suit. 3A. Dissatisfied with the judgement and decree the present appeal has been filed by Shri Sohanlal decree holder.