KARAN SINGH Vs. BUDH SEN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for possession of a Nohra, a house and some land appurtenant to the house, on the allegation that the plaintiffs father Pitambar Das gave the house to the defendants to reside, that the plaintiffs now require the house for their own use and therefore served notice on the defendants to make over the house to the plaintiffs, that the defendants hate refused to deliver possession of the house : hence the suit. The suit was resisted by the defendants inter alia on the grounds that the defendants were the owners of the property, that they were in adverse possession of the property, that even if they were licensees they were given the land by the predecessor of the plaintiffs for building a house and as they have spent considerable amount of money on constructing a building on the land the licence cannot be revoked and, lastly, that the suit is not maintainable for non-joinder of a necessary party. The Court of first instance dismissed the suit. On appeal the learned Civil Judge decided most of the issues in favour of the plaintiffs but dismissed the suit on the ground of non- joinder of a necessary party. The plaintiffs now come to this Court in appeal. It may be noted that the original plaintiff Chiranji Lal is dead and the present appellants have been substituted in place of Chiranji Lal.

(2.) Learned Counsel for the appellants has challenged the finding of the learned Civil Judge on several grounds. He contends that the defendants had never pleaded that there was a partition between the plaintiff Chiranji Lal and his brother and therefore the presumption of law remains that the property belonged to both brothers as joint owners and, on the death of Chiranji Lal's brother Hira Singh and the latter's son Durga Prasad, Chiranji Lal became full owner of the property to the exclusion of Durga Prasad's widow. The plaintiff in para. 1 pleaded that he was the sole owner of the property in dispute. The defendants in para. 18 of the written statement pleaded that Pitambar Das the original owner of the property left two sons namely the plaintiff and Hira Singh deceased. Hira Singh died leaving a son Durga Prasad who died leaving a widow Mt. Tirbeni Kuar, who was a necessary party to the suit. There was no suggestion whatsoever in this paragraph or in any other paragraph of the written statement that there was a partition between Chiranji Lal and Hira Singh or his son Durga Prasad. The learned Munsif framed the following issue in the light of the written statement:

(3.) Issue 5. Is Mt. Tirbeni a necessary party to the suit? The finding of the learned Munsif on this issue is in the following terms: It is proved beyond doubt that Mt. Tirbeni is residing separate from the plaintiffs as stated by plaintiffs witnesses. Her husband was also residing separate from plaintiff....