KRISHNA KUMAR SAHU Vs. NARBADA PRASAD SAHU

JUDGEMENT

(1.) THIS appeal has been preferred by the Defendant calling in question legality of judgment and decree dated 16 -9 -2002 passed by 18th Additional District Judge, Fast Track Court, Jabalpur in Civil Suit No. 25 -A/2002.

(2.) THE Plaintiff; Narbada Prasad Sahu, father of Defendant; Krishna Kumar Sahu filed suit on 19 -12 -1994 for declaration that the house at plot No. 129 in scheme No. 6 situated at Sanjeevani Nagar, Garha, Jabalpur is the property of Plaintiff and Defendant is the Benamidar. The Defendant be restrained from interfering with the possession of the Plaintiff and from selling the suit property to anybody. Plaintiff has averred that the Defendant is the youngest son of the Plaintiff. Plaintiff has four sons and daughters. Plaintiff is in possession of ancestral property as KARTA. Jabalpur being the education center, Plaintiff intended to have house at Jabalpur, for that the Plaintiff had negotiated and purchased plot No. 129 from JDA. As the Plaintiff was living out on account of service, he thought it proper to obtain plot from JDA in the name of his son; Krishna Kumar Sahu the Defendant. The amount for acquiring the plot was spent by the Plaintiff. He constructed the house after obtaining sanction from JDA and spent most of his service earning. House was completed in the year 1987. His eldest son; Santosh Sahu shifted in the portion of the house in November, 1987, other two portions were let out by him to tenants. One of the tenant Shri Vishwakarma vacated in August, 1990, another tenant Ghanshyam Kashyep vacated in March, 1992. The property is a common hotch -potch property for the benefit of his sons after him. Ultimately a settlement was reached between the parties relating to property at Mandla for the purpose of payment of municipal taxes, the Defendant had agreed that the disputed house was the property of Plaintiff and his wife. Thus, the Defendant was estopped to contend contrary.

(3.) DEFENDANT in the written statement contended that it was not ancestral property. There was no joint Hindu family. Property situated at Mandla was the joint property. Plot was obtained on lease by the Defendant. He spent money out of his own savings and paid the amount of JDA. The rent used to be realized and utilized by the Plaintiff in lieu of the loan amount which he had spent for construction. Amount was lent by the Plaintiff as a loan. Settlement -deed dated 11 -11 -1988 was not admissible in evidence. It was not properly stamped. The disputed property belongs to him. When the Plaintiff wanted to obtain mutation, an objection was raised by the Defendant. Consequently, it was not allowed by the JDA, he was not Benamidar his Affidavit dated 6 -11 -1994 was of no value. It was not on proper stamp. Plaintiff was not entitled to take plea of Benamidar in view of Benami Transaction Prohibition Act, 1988. Plaintiff joined the service at Jabalpur in September, 1975 as Lab. Assistant. He saved the amount out of his earning and made the payment of Rs. 1500/ - to Town Improvement Trust on 9 -7 -1976 and applied for facility of instalment for payment of remaining amount. In the construction the Defendant has spent the amount out of his own earning. Sum of Rs. 80,100/ - was obtained as loan from Plaintiff. Out of rent and his earning amount has been repaid to the Plaintiff. Plaintiff had permitted his brother Santosh Sahu to live as a licensee in 3 rooms. In remaining rooms tenants used to reside.