MT KATORI Vs. OM PRAKASH

JUDGEMENT

(1.) This is a second appeal by the defendant from the decree passed by the learned Additional District Judge, Etah, upholding in appeal the decree passed by a Munsif of that District in a suit for possession brought by the plaintiff, Dhani Ram, who has since died and is now represented by his son Om Prakash. The suit was decreed by the trial Court. The defendant's appeal to the lower Court was unsuccessful.

(2.) The facts, so far as they are necessary for the purposes of this appeal, are no longer in dispute. The shop in dispute, together with a house, belonged to one Ganga Ram, son of Ishwar Das, of Kasganj, where the property in dispute is situate. There were many persons in Kasganj of the name Ganga Ram, and this fact has proved to be a fruitful source of litigation. The plaintiff Dhani Ram claimed title under a mortgage deed executed by Ram Chandar, son of Ganga Ram, alleged, to be son of Ishar Das, on 16 March 1921. The mortgage was in respect of the shop in dispute. Subsequently Ram Chandar sold the house and the shop in dispute to one Dal Chand. The latter was resisted by Mt. Katoria, defendant- appellant, in taking possession of the house and the shop. She claims ed to be the widow of Jai Dev, son of Ganga Ram, son of Ishwar Das. She denied that Ganga Ram, son of Ishwar Das, had another son Ram Chandar. Her case was that on the (death of Ganga Ram, son of Ishwar Das, his interest in the house and the shop devolved upon her only son, Jai Dev, her husband, on whose death she obtained the entire property under a will executed by Jai Dev. It became necessary for Dal Chand to institute a suit for recovery of possession against Mt. Katoria. Accordingly he instituted such a suit against her. The principal question in the case was whether Ram Chandar, the vendor of Dal Chand, was the son of Ganga Ram, son of Ishwar Das. It does not appear to have been disputed that Jai Dev was the son of Ganga Ram, son of Ishwar Das. Dal Chand's case was that, on the death of Ganga Ram, son of Ishwar Das, property devolved upon his two sons, Jai Dev and Ram Chandar, and that on the death of Jai Dev his interest survived to Ram Chandar, so that he became the sole owner of the house and the shop. In this view, Ram Chandar was entitled to transfer the house and the shop in their entirety to Dal Chand. Ram Chandar was a party to that case, but Dhani Ram, the plaintiff of the present suit was not. He (however gave evidence in support of Dal Chand's allegation that Ram Chandar was the son of Ganga Ram, son of Ishwar Das. It was held that Ram Chandar was not the son of Ganga Ram, son of Ishwar Das. Dal Chand's suit was accordingly dismissed finally by this Court on 29th March 1926. Dhani Ram then instituted a suit in 1927 for enforcement of his mortgage against Ram Chandar. He did not implead Mt. Katoria. It does not appear whether the suit was contested, but this fact is not material in view of the findings arrived at by the lower Court. A decree for sale was passed in due course. The property was sold and purchased by Dhani Ram himself. Formal delivery of possession was given to Dhani Ram; but he did not succeed in obtaining actual possession and had to institute against Mt. Katoria the suit which has given rise to this appeal.

(3.) The suit was resisted, inter alia, on the three grounds: (1) The decision in Dal Chand's suit operates as res judicata in the present litigation; (2) Ram Chandar is not, in fact, the son of Ganga Ram, son of Ishwar Das; and (3) Mt. Katoria has been in adverse possession of the shop in dispute. Both the lower Courts have found that the decision in Dal Chand's suit does not operate as res judicata, and that Ram Chandar, was the son of Ganga Ram, son of Ishwar Das. They also repelled the plea of adverse possession put forward by the defendant-appellant.