ONKAR LAL Vs. REWA PURI

JUDGEMENT

(1.) Respondent-Rewa Puri filed a Civil Suit in the Court of District Judge, Udaipur on 22nd April, 1975 claiming a decree against appellant-defendant for declaration of Plot No. 366 situated at Bhopalpura, Udaipur as of the ownership of the plaintiff and that possession of the said plot be delivered to the plaintiff which was in possession of the defendant.

(2.) The plaintiff's case as disclosed in the plaint is that plot No. 366 situated at Bhopalpura was allotted to the petitioner-plaintiff as Bapi in 1948 by the then City Improvement Trust, Udaipur in lieu of consideration of Rs. 457/-. In 1955 the patta of the plot was issued in the name of plaintiff. The plaintiff started construction on the plot in 1966. At that time the defendant filed a Civil Suit for permanent injunction claiming the property in question to be his for injucting the present plaintiff from carrying on construction on the plot and restrain him from interfering with his possession. The application for temporary injunction was dismissed and ultimately the suit for declaration of ownership was dismissed on 22nd January, 1975 by Munsiff Court Udaipur by holding that though the present defendant has not been able to prove his title, the suit filed was dismissed as to about his ownership. However, since the pendency of the suit the defendant has taken over the possession of the plot in question, the Court directed the present plaintiff to secure the possession by filing the suit in accordance with law. According to averments made in the plaint the defendant started claiming to be owner of the said plot since 1966 when he filed the civil suit. Further alleging that the defendant is in possession of the suit only since 1971 as trespasser which he is not entitled to retain, and that cause of action arose in December, 1971 when defendant dispossessed the plaintiff, plaintiff filed the present suit for aforesaid reliefs. It has also been averred in the plaint that plaintiff continued construction over the plot until 1969 when Municipal Council, Udaipur restrained further construction in pursuance of the order made by the Munsif Magistrate in civil suit No. 93/66. While stating when the civil suit was pending in the Court of Munsif Court, Udaipur, defendant dispossessed the plaintiff in December, 1971 which followed with proceedings u/S. 145 Cr.P.C. lodged by the plaintiff which were dismissed on 29th September, 1973. 2A. The defendant in his written statement denied the claim of the plaintiff's ownership as well as possession in question, and also the facts stated therein about the plaintiff's dispossession in December, 1971. While admitting that plot was in the name of plaintiff, it was denied that full consideration of Rs. 457/- was deposited or paid by plaintiff. It was alleged that plaintiff had deposited from time to time in totality only a sum of Rs. 168/12 as by 13th May, 1948. He did not deposit the remaining sum because the plaintiff after receiving the said amount of Rs. 169.03 as. from Gaeshlal, the present defendant, on 2nd December, 1955, had transferred the plot in favour of Ganesh Lal. Thereafter the balance amount of Rs. 281/4 Anas, plus fees Rs. 2/-, map charges Rupees 5/- totaling Rs. 288/4 Annas were deposited by Ganesh Lal Bordia on 6-10-55 and patta was delivered to Ganesh Lal on 9-2-56 after obtaining receipt from him. Ever since the issuance of patta plaintiff was never in possession of the plot in question. The defendant also denied that plaintiff made any construction on the plot in question. Filing of Civil Suit No. 93/66 (66/66 new no. 51/72) by the defendant against plaintiff and his brother Sajjanpuri, was admitted, which according to defendant was decreed in his favour on 28th Jan. 1975 against which no appeal has been made and has become final. The fact of raising construction in 1969 was also denied. It was alleged that even in the suit the defendant's possession in his own right since 12-11-65 has been accepted by the Court and therefore, it was asserted that the Civil Court has found as fact in favour of the present defendant that he is in possession of the plot in his own right since 12-11-1965. He alleged that he is in possession of plot under a registered sale deed executed by Ganesh Lal on 12th November, 1965 and he was also in possession of the patta since then. Along with patta of the plot in question defendant was also given the receipt executed by the plaintiff in favour of Ganesh Lal dated 2nd October, 1955 for a sum of Rs. 169/3 Annas in consideration of transfer of the plot in question to Ganesh Lal and other documents showing that Ganesh Lal has constructed boundary wall in 1959. It was alleged that since 12-11-65 defendant was in possession of the land in question as its owner and in his own right and prior to that it was in possession of his predecessor in title Ganesh Lal Bordia. The dismissal of suit was prayed. In additional pleas the defendant detailed the facts in connection with the dealings with the land by the plaintiff since beginning and his conduct in respect of the land in question and also about possession of land which was found to be with present defendant since 1965 in his own right by the learned Munsiff in his judgment and decree dt. 28-1-75, by which his suit for injunction was decreed.

(3.) It was also alleged that infact after the defendant has purchased the plot in question from Ganesh Lal, Plaintiff himself has agreed to purchase the land from defendant for Rs. 3800/- in December, 1965 against which a sum of Rs. 100/- and Rs. 900/- by way of cheque was also paid to the defendant, though the cheque was in the name of third party who encashed. The balance payment of the said consideration amount of Rs. 2,800/- were never given which resulted in filing a complaint u/S. 420, IPC which was ultimately settled out of the Court when Kesharimal Lodha who has secured the payment of cheque delivered made payment on Rs. 1,000/- to the defendant. On these allegations that the plaintiff has not come with clean hands by disclosing the full facts the defendant prayed for dismissal of the suit. The following issues were framed :