LAWS(PVC)-1926-5-62

ISWAR CHANDRA AGRADANI Vs. JOGENDRA LAL ROY

Decided On May 11, 1926
ISWAR CHANDRA AGRADANI Appellant
V/S
JOGENDRA LAL ROY Respondents

JUDGEMENT

(1.) This appeal arise out of suit instituted by the plaintiff for declaration of his title by purchase of a homestead and for recovery of possession thereof by ejecting the defendants who according to the plaintiff are tenants-at-will with respect to the homestead. The Court of first instance declared the plaintiff's title and gave him a decree declaring his right to joint possession with the defendants to the extent of 8-annaa share. The plaintiff preferred an appeal and the learned Additional District Judge by his decree dated the 11 December 1923, decreed the plaintiff's suit in full. The defendants have thereupon preferred this appeal.

(2.) The plaintiff's case shortly stated was that in the subject-matter of this suit, namely, the homestead, one Kala Chand had nishkar right. Kala Chand's son Kali Kumar mortgaged the said homestead to Kula Chandra Bisharad. The latter sued on the mortgage, obtained a decree and in execution of it he put up the homestead to sale. One Nanda Lal Roy purchased the homestead at the auction-sale and from Nanda Lal the plaintiff purchased the same in July 1922. The plaintiff's case is that by this purchase he acquired 16-annas nishhar right to this homestead and that the Defendant No. 1 was a tenant-at-will in respect of this homestead paying a rent of Rs. 2 per annum. The plaintiff instituted the suit to eject the Defenda No. 1 and to recover khas possession the homestead. The defece Defendant No. 1 was that he was no tenant-at-will in respect of the home-stead but that his father, one Amar Chand who was a cousin of the said Kula Chandra Bisharad, was entitled to 8 annas nishkar right in the home stead. The case for the said defendant was that the homestead was made a gift of to Kula Chandra and Amar Chand on the occasion of the Saradh of a deceased person and that, therefore, they were entitled each to an eight-annas share therein. As I have already stated the defendants case was accepted by the Court of first instance and the learned Judge on appeal has given the plaintiff a decree in full.

(3.) Four grounds have been urged on behalf of the appellants in support of this appeal. The first ground relates to the question of some additional evidence that was received by the learned Judge on appeal. The additional evidence consisted of certified copies of an award and a map made in connexion with some land acquisition proceeding. The land acquisition proceeding referrd to a plot of land bearing No. 897, the subject-matter of the present suit being Plot No. 772. Both these plots, according to the cases of both parties were made a gift of at the time of the Sradh to which I have referred and this additional evidence was adduced at the appellate stage of the case for the purpose of showing that in respoect of this plot, namely. Plot No. 897, the compensation money awarded in the land acquisition proceeding was appropriated by the plaintiff and the defendant in unequal shares, the plaintiff taking the major part of it and the defendant a very small portion, thus suggesting that in respect of the said plot the defendant was not an 8-annas co-sharer of the plaintiff and the plaintiffs case, namely, that he was entitled to 16-annas right and the Defendant No. 1 was only a tenant was true.