RAGHUBAR DAYAL Vs. BALKISHAN

JUDGEMENT

(1.) The dispute in this appeal relates to a certain house and a shop standing in Hathras city. They practically formed one building and belonged to Jamna Das, who on the 4 of June, 1890, made a gift thereof in favour of the plaintiff. Jamna Das died in Sambat 1961. Shortly afterwards the plaintiff hypothecated the said house including the shop, by way of a simple mortgage, in favour of Makhan Lal for a sum of Rs. 100. The allegation of the plaintiff was that that mortgage was intended for the benefit of Bhola Nath who held a contiguous house, and that about two years later Bhola Nath took possession of the mortgaged property on an agreement to pay rent at Rs. 2 per mensem, out of which Re. 1 per mensem was to be credited in payment of interest due on the mortgage and the balance in payment of the principal due thereon;

(2.) The plaintiff goes on to say that in defiance of that arrangement a suit was brought by Makhan Lal for recovery of the money due on the mortgage, and a decree was eventually obtained on the 24 of August, 1916, which the plaintiff had ultimately to satisfy. The plaintiff next brought a suit against Balkishan, the son of Bhola Nath, for possession of the said house on an allegation that he was in occupation thereof as a (sic) and was refusing to vacate the same in spite of notice. There was also a claim laid for damages on account of certain materials said to have been removed by Balkishan. That suit was referred to arbitration, but the plaintiff did not appear before the arbitrator, who consequently reported that the suit ought to fail for default of the plaintiff. The defendant was present before the arbitrator to prosecute his defence. The court before which the suit was pending dismissed the suit for default, acting under the provisions of order IX, Rule 8, of the Civil P. C..

(3.) The present suit has been filed by the same plaintiff for the recovery of possession of the same property. The allegation now made is that Bhola Nath had been put ip possession of the house in lieu of the principal and interest payable to him under the mortgage of the 13 of August, 1904; that Bhola Nath was succeeded by Balkishan and that Balkishan had wrongfully denied in the previous suit that he was a tenant. The date of the denial of the title of the plaintiff by Balkishan in the previous suit has been treated as the cause of action for the present suit. The defendant Balkishan denied the title of the plaintiff, and pleaded that he had been in adverse possession of the disputed property. He also denied that Bhola Nath had been in occupation of the said property as a tenant and alleged that the suit was without any cause of action and not maintainable.