KEDAR NATH SINGH Vs. SHEO SHANKAR

JUDGEMENT

(1.) THE suit out of which this appeal has arisen was brought by the plaintiff- respondent for possession of a seven storied house No. 7-27 called Chhoti Haveli situated near the golden temple in Benares. This house had been purchased by Musammat Lakhpat Kunwar, the widow of one of the Pandas of the temple, in 1898. She died on the 7 of January 1914. On the 30 of December 1903 she made a Will in favour of the plaintiff and Letters of Administration were, after her death, obtained by the guardian of the plaintiff. THE plaintiff claimed the property both as adopted son of the lady and also by virtue of the Will. THE claim on the basis of adoption was repelled by the Court below, but the claim has been decreed by the learned Subordinate Judge on the ground that the property belonged to Musammat Lakhpat Kunwar at her death and that the plaintiff by virtue of her Will has acquired it. On the 2 August, 1903 Musammat Lakhpat Kunwar executed a sale-deed in favour of the defendant Kashi Nath in respect of the house in question and certain moveable property such as chandeliers, mirrors, etc. which were in the house for a consideration of Rs. 3,000. THE defendant Kashi Nath contended that under this sale-deed he had acquired the house and it was alleged that under a partition between him and Kedar Nath, the appellant, the house had fallen to the share of Kedar Nath. After the death of Musammat Lakhpat Kunwar when the application for Letters of Administration was pending certain moveable property alleged to have belonged to the lady was attached by an order of the Court. THE present defendant Kashi Nath applied to the District Judge for release of the moveable property so attached. That application having been refused he instituted a suit for establishment of his right to certain moveables including the moveable property mentioned in the sale-deed of the 2 August, 1913. He alleged that under that sale-deed he had purchased the moveable property mentioned in the sale-deed. On behalf of the present plaintiff who was a defendant to that suit it was contended that the sale-deed was nominal and fictitious and had been obtained from the lady who was an old and parda nashin lady by the defendant Kashi Nath who was her agent and whose father also washer Mukhiar- am. THE learned Subordinate Judge framed an issue as to the validity or otherwise of the sale-deed and he came to the conclusion that the sale-deed was a fictitious and nominal document and was invalid and he dismissed the suit of the present defendant. Since then no further litigation took place in respect of the house in question. On the basis of the sale-deed the name of Kashi Nath was entered in the registers of the Municipality of Benares in respect of this house in the place of Musammat Lakhpat Kunwar. Subsequently, a tenant of the name of Ram Bharos was living in this house as tenant. THE plaintiff instituted a suit against him for recovery of arrears of rent in the Court of Small Causes. Ram Bharos denied being the tenant of the plaintiff and stated that the house belonged to Kashi Nath and that he was Kashi Nath's tenant. THEreupon the plaint was returned to the plaintiff under Section 23 of the Provincial Small Cause Courts Act and the plaintiff then instituted the present suit for recovery of possession of the house against Kashi Nath, Kedar Nath and Ram Bharos. Ram Bharos died during the pendency of the suit. THE defendants based their title upon the sale-deed of the 2nd of August 1903 to which we have referred above. THEy also asserted that they were in adverse proprietary possession for more than 12 years and even if the plaintiff had any title that title had become extinct. THE Court below held that the decision in the previous suit dated the 25 of June 1907 operated as res judicata, that in its opinion, the sale-deed was fictitious and nominal and that the plaintiff had proved not only his title but also his possession within 12 years. It accordingly decreed the suit. THE defendant Kedar Nath preferred this appeal. No doubt Kashi Nath who had supported the claim of Kedar Nath produced the sale-deed of the and of August 1903. He also produced the title-deeds of Musammat Lakhpat Kunwar. As Kashi Nath and his father were the agents and servants of Musammat Lakhpat Kunwar the possession of the title-deeds by these persons is not a circumstance which can. carry any weight. Had the purchaser been a stranger to Musammat Lakhpat Kunwar the fact of his possessing the original title-deeds would have been a strong argument in favour of the sale-deed held by Kashi Nath not being a nominal document, but having regard to the fact that Kashi Nath and his father were the servants of the lady and were looking after her cases they had access to the documents belonging to her, and the fact of the title-deeds being in their possession would not be a circumstance which would be prejudicial to the plaintiff's case. As regards the matter being res judicata it seems to us that the question as to the validity or otherwise of the sale-deed of the 2 August, 1903 was a matter directly and substantially in issue in the previous suit. A portion of the property claimed in that suit was claimed on the basis of the sale-deed. Unless the validity of the sale-deed could be established that part of the claim could not prevail. THErefore, the question whether the sale-deed was a valid document was a question which arose directly and substantially in the previous suit without a determination of which that suit could not be determined. It is true that the property now claimed was not claimed in the previous suit, but the title to this property and to the property then claimed was derived from the same source and the Court decided that source, namely, the sale-deed, to be invalid and that it conferred no title on Kashi Nath. Most of the arguments which were used by the Bombay High Court in the case of Ananta Balacharya V/s. Damodhar Makund 13 B. 25 : 13 Ind. Jur. 145 : 7 Ind. Dec. (N.S.) 17 apply with equal force to the present case. Our attention was drawn to the ruling of this Court in Khalik Yar Khan v. Mobarik Begam 7 Ind. Cas. 388. No doubt there are observations in that judgment which favour the appellant's case, but we think that, as in the present case the claim is based entirely on the sale-deed and the question of the validity of the sale-deed arose directly in the previous suit and that suit could not be determined without a decision as to the validity of the sale-deed, the decision in the previous suit must be held to be binding as between the parties. Furthermore, that decision is a very strong piece of evidence against the present defendants. THE sale-deed was executed by a lady of affluent means. It is true that she had embarked on litigation and had been unsuccessful and that a decree was pending against her but she was apprehensive of a claim for mesne profits being put forward against her and, therefore, she had a good motive for transferring this house in such a way as to enable her afterwards to protect the property. THE purchaser, as has been already stated, was her servant. It lay very heavily upon him to prove by cogent evidence that the transaction was above board and that no advantage had been taken of the lady's age and position. It is true that Rs. 600 out of the alleged consideration for the sale was paid in the presence of the Registering Officer but no evidence has been given to show how the present defendant Kedar Nath procured the money which he paid at the time of registration, or that he had paid to the lady Rs. 800 some time before the execution of the sale-deed. A decree for costs ha d no doubt to be discharged and it is said by Kashi Nath that he paid the amount of the decree to a Civil Court Amin. Beyond the bare statement of Kashi Nath and that of a witness Bijoy Bahadur Lal, there is no other evidence to prove that the amount of the decree was paid by Kashi Nath himself. THE Amin to whom the payment is said to have been made was not examined, nor was any receipt produced granted by the Amin. In the judgment in the previous suit the learned Subordinate Judge gave various reasons for his conclusion that the sale was a fictitious transaction. We are not in a position now to hold that the conclusion at which the Court arrived in 1907 and that to which the learned Subordinate Judge came in the present case were erroneous conclusions. It is said that Kashi Nath has proved that he has been in possession of the property ever since the date of the sale. THE first piece of evidence which he adduces beyond the possession of the sale-deed and the title-deeds is the fact that receipts for Municipal taxes since the year 1904 paid for the house have come from his possession, but it appears that out of these taxes those payable for the years subsequent to 1912 were paid by the tenant Ram Bharos. THE evidence upon the question whether Ram Bharos was the tenant of the defendant or of the plaintiff is somewhat scanty. Sukhdeo, a witness for the plaintiff, has deposed that Ram Bharos was recommended by him to the plaintiff's guardian Keshi Prasad as a suitable tenant for the house and that Ram Bharos was put in the house by Kashi Prasad. Some receipts for rent had been produced by Ram Bharos, but some of those receipts purported to have been granted by one Mahadeo. It was proved at the trial that during the years in which Mahadeo is said to have granted the receipt he was not working for the defendant Kashi Nath, so that the learned Subordinate Judge came to the conclusion that the receipts purporting to have been granted by Mahadeo were not genuine receipts. THE Pleader who represented Kashi Nath in the Court below in a way admitted this, as the judgment of the learned Subordinate Judge shows. As house-tax was paid in subsequent years by Ram Bharos and as it is probable that the defendant may have paid the house-tax during the time when litigation was going on as to the validity of the sale, the fact of the possession of receipts for house-tax or of the payment of house-tax is insufficient to establish the defendant's adverse possession of the house. THE plaintiff has examined three witnesses whose respectability and credibility are beyond question. One is Thakurain Raj Kunwar, a zemindar lady of the Sitapur District. She swore that she rented the disputed house which she described as a seven storied house near the golden temple from Kashi Prasad, the guardian of the plaintiff, in 1908 and paid him a rent of Rs. 10 for her occupation of the house. THEre is another wit- ness, Dr. G. Basu, who practises at Jaunpur and is a Municipal Commissioner. He has deposed that in 1908 when he was a student he came to Benares with his grandmother and mother and on the recommendation of a Bengali gentleman he was allowed by Kashi Prasad the plaintiff's guardian to occupy this house which was known as Chhotihaveti for over a month. A third witness, Ram Das, a zemindar unconnected with either of the parties, has deposed that with the permission of Kashi Prasad he occupied the house for a month or so in 1906. So that there is incontestable evidence that in 1906 and 1908 Kashi Prasad had charge of the house and allowed persons who could not be deemed to be the defendant's tenants to occupy the house. THEre is no doubt the fact that Ram Bharos lived in the house from 1912 or 1913 and paid house-tax. THEre is no satisfactory evidence as to which of the parties realised rent from him. but the witness Sukhdeo, to whose evidence we have already referred, deposed that Ram Bharos went into the house with the permission of Kashi Prasad. This witness has been believed by the learned Subordinate Judge and we see no valid reason for disbelieving him. THE defendant has, therefore, failed to prove by very clear evidence that the sale was a genuine transaction and that the purchaser under the sale-deed has been in possession continuously for more than 12 years from the date of the sale. On the other hand, there is evidence to which we have referred and which the Court below has accepted showing that the plaintiff was in possession within 12 years prior to the date of the suit and as Ram Bharos was his tenant he continued in possession during all the years that Ram Pharos actually occupied the house. In these circumstances, we do not think that we should be justified in interfering with the decree of the Court below. We accordingly dismiss the appeal with costs including fees on the higher scale.