BAIJNATH Vs. RAM BILAS

JUDGEMENT

(1.) In the Court of first instance a suit was brought for the possession of a house by three brothers, Munna Lal major and Baijnath and Rang Lal minors, under the guardianship of Munna Lal. There were three sets of defendants, Rambilas, Gulab Rai and others and Ramjidas. The plaint allegations were that by collusion between Rambilas and the plaintiffs cousin Ramjidas, Rambilas was placed in possession of the house, and that subsequently Gulab Rai and others took possession and refused to vacate on notice being issued to them. In 1909 Rambilas sued Ramjidas and the then minors Munna Lal Baijnath and Rang Lal under the guardainship of the Nazir of the Court of suit, for recovery of money due on bahi khata accounts. The defence of Ramjidas was that he had transferred a house worth Rs. 800 and odd to the plaintiff of that suit on condition of the price being set off against the money due. This defence was accepted and the Court passed a decree giving to the defendants credit for that sum if they executed a sale-deed in favour of the plaintiff. No such deed was executed and the plaintiff applied for execution of the full amount of the decree. Ramjidas objected and on the litigation being carried up to this Court, the order of this Court was that Rambilas should file a draft sale- deed within two months of the date of the order, which was 1 November 1912. No further action was taken by Rambilas in execution of his decree, which in consequence became inoperative by lapse of time.

(2.) The learned District Judge held that Rambilas entered into possession of the house in 1907, that his possession was adverse from that year, that it had perfected into good title when the present suit was instituted in 1920, and that the suit was time-barred because Munna Lal had attained majority more than three years prior to the institution of the suit.

(3.) The points argued before us were: 1. That the possession of Rambilas did not become adverse till 1 November, 1912, the date of the order of this Court referred to above. 2. That Gulab Rai was an independent trespasser and the period of his possession cannot be tacked on to the period of possession of Rambilas; and 3. That even if the suit be barred against Munna Lal, it was not barred against his two brothers who were still minors. Only Baijnath and Rang Lal have appealed and it is not explained why Munna Lal did not appeal if there was any substance in the first two arguments advanced by the appellants learned Counsel. It is not clear how the order of this Court made any difference to Rambilas's possession and why it should become adverse on that date. It is found by the lower Court as a fact that Rambilas entered into possession by right of ownership in 1907. The appellants learned Counsel submitted that Rambilas would have said so at the time of his money suit if he had claimed to be owner of the house. In our opinion, he was not required to make such a declaration. He wanted to hold on to the house, recover the full amount due to him and give no set-off for the price of the house. It was not to his interest to disclose the arrangement regarding the house of which he was in possession. The defence in that suit led the Court to recognize the arrangement between Rambilas and Ramjidas. Ramjidas stated as his defence that he had made over possession of the house to Rambilas and was entitled to a reduction of the money claim by the price of that house. The appellants learned Counsel argued that Ramjidas was colluding with Rambilas and that his clients did not recognise any act of Ramjidas, who was not acting in their behalf. If this is the attitude of the appellants, Rambilas's possession as owner against the wishes of the appellants, was certainly adverse to the appellants at all events, from its very inception, whatever its nature may have been against Ramjidas. The learned Judge of the lower Court was correct in holding that the possession of Rambilas was adverse from the year 1907.