BHAGWANDAS Vs. LILADHAR

JUDGEMENT

(1.) THIS appeal has been filed by Bhagwandas dissatisfied with the judgment & decree dt. 22.11.1984 passed by learned Additional District Judge, Dholpur whereby, it decreed the suit filed by him for declaration and recovery of possession and in the alternative, if the main relief is not granted due to any defect in the title of defendants No. 1 to 4, for recovery of sale amount of Rs. 7735/ -, was decreed in part alongwith interest @ 12% p.a. pendent lite against defendants No. 1 to 9, whereas the suit was dismissed against defendant No. 10. The suit property comprised of House No. E.P. C/354 and land appurtenant thereto situated in 'Badi' town, which was originally owned by one Majid Khan, who on partition of the country, went to Pakistan and his property was declared as evacuee property by the Custodian Department. The Custodian Department conducted auction of the said house. Plaintiff gave highest bid for Rs. 7,000/ -, which was accepted and defendant No. 4 Managing Officer, Custodian Department, Alwar issued a sale certificate in his favour dt. 08 -12 -1969 (Exh. 14). Boundaries of the property were narrated in para 1 of the plaint, according to which, towards the northern side of the said house, there is house of Ramprasad Vaishya, towards the southern side, there is 'nohra' of the ownership of the plaintiff and his brother and on the eastern side thereof, there is a public way and on the western side, there is another house of Ram Prasad Vaishya, father of the plaintiff, Receipts in regard to the payment were exhibited as Exh. 16 & Exh. 17. Acceptance of the bid of the plaintiff dt. 10.10.1968 is Exh. 3. On the date when the sale was affected in favour of the plaintiff, defendants No. 5 to 10 were residing in the property, which comprised of a house and land appurtenant to it in Mohalla Kiri, Town Badi, District Dholpur. Defendant No. 5 claimed to be the owner of the said property. He on 07 -02 -1970 sold part of the suit property, situated in South -East comer, which was in a triangular shape, to defendant No. 10 for consideration of Rs. 1500/ - vide registered sale -deed. Defendants No. 1 to 4 did not get possession of the property in dispute nor took any action against defendants No. 5 to 10. Plaintiff thereafter filed a suit with aforementioned prayers. Defendants No. 1 to 4 did not appear before the trial Court and therefore proceedings against them were drawn ex -parte, Defendants No. 5 to 9 filed a composite written statement, They asserted that they were residing in the suit property as its owner and are in possession of the same. They also admitted that plaintiff was never put in possession of the said property. Plaintiff had no cause of action to file suit against defendants. Value of the property is no less than Rs. 15,000/ - and therefore, lesser Court fee has been paid. They pleaded ignorance about auction of the property of Rs. 7000/ -. It was denied that the disputed property is an evacuee property. Defendants were in possession of the same much prior to 1947 and therefore there was no question of the disputed property, being an evacuee property. Neither any notice of auction was affixed on the property nor any such notice was ever served upon the defendants nor their possession in the property was disturbed. They throughout continued to be in possession of the disputed property. Suit was barred because defendants' predecessors are in possession of the suit property. Kale Khan, father of defendants No. 6 to 8 and husband of defendant No. 9, was in possession and thereafter Meer Khan along with defendants No. 6 to 9 where in its possession. It was their ancestral property. Suit be therefore dismissed.

(2.) DEFENDANT No. 10 also filed separate written statement and admitted that he purchased the suit property from defendant No. 5.

(3.) Plaintiff Bhagwandas in support of his case, got examined himself as P.W.1, Karan Singh as P.W.2, whereas from the side of defendants No. 5 to 9, Yusuf Khan was examined as D.W. 1, Panna as D.W. 2, Mohd. Hussain Khan as D.W. 3, Radheyshyam as D.W. 4, Dwarika Prasad as D.W. 5 and Hamid Ali Khan as D.W. 6. Respondent No. 2 Padam Sukh appeared on behalf of defendant No. 10 as D.W. 10/1.