HEERA LAL Vs. HARIVALLABH

JUDGEMENT

(1.) THIS is defendant's second appeal arising out of a suit for possession by redemption of mortgage of a house situated in village Phoolbaroda District Baran.

(2.) IT is common ground between the parties that the house in question belonged originally to one Birda, who died on 8.10. 1958. It is also not disputed at this stage of litigation that this house was mortgaged by Birda with the defendant -appellants Heeralal and his brother Kishanlal on Bhadwa Badi 1. S. 2015, i.e. in September 1958 for a consideration of Rs. 50/ -. The plaintiff Hari Ballabh's cafe however is that after the death of Birda which took place of 8 -10 -1958, his brother Prabhu, who was his sole heir sold away the house in question to the plaintiff on 12. 10. 58 by an unregistered sale deed also handed over possession of the same to him but on the very next day, Heeralal dispossessed him. Hari Ballabh, therefore filed a suit for possession under Section 9 of the Specific Relief Act 1877 on 18.10.58, but the same was dismissed on 24.5.1960. The plaintiff, therefore, instituted the present suit on 25.5.1960 for possession of the house in question on the basis of title. The plaintiff also claimed Rs. 150/ - as damages on account of demolition of construction in this house by the defendants. The defendants filed a joint written statement and pleaded interalia that Prabhu alone had no right to sell away the house as there was one more brother of the deceased Birda by name Devilal and further that the sale deed was fraudulent and without consideration.

(3.) I have heard Mr. M.C. Bhandari, learned Counsel for the appeallants, and S.K. Jindal, on behalf of respondent -plaintiff at some length. Learned Counsel for the appellants has urged only two points in suport of the appeal. In the first he has contended that it is fully established that Birda died leaving behind two brothers as his heirs viz. Prabhu and Devilal and the finding of the learned lower court that Devilal had gone in adoption into another family is wholly unsustainable He has, therefore, argued that Prabhu alone who was only one of the heirs of the deceased Birda had no right to sell away the whole of the house. The other point urged by Mr. Bhandari is that both the lower courts have completely ignored the effect of the judgment given inter -parties in the suit instituted by the plaintiff in respect of this very property under Section 9 of the Specific Relief Act. It is submitted that the allegation of the plaintiff in that case that he had been dispossessed from the house in question within six months from the date of the institution of the suit had been found false. The natural corollary of this finding, according to the learned Counsel, is that the plaintiff did not get possession of the property in question at all. It is, therefore, urged that the sale being unresistred and not having been accompanied by delivery of possesson is not sale in the eye of law, and no title can accrue to the plaintiff on the basis of such a sale. It is thus contended that the decree for possession granted by the lower courts on the basis of such a sale which is void in the eye of law cannot be maintained. No other point was urged by the learned Counsel and therefore I may confine myself to the decision of the only two points set out above.