- (1.) The donor of the appellant Smt. Jamuna Kunwar filed suit No. 23/63 for a declaration of the title with respect to three properties bearing Nos. 51, 52 and 53 Civil Lines, Bareilly. The defendants Keshav Chandra and Jagdish Chandra are her sons. It appears that Keshav Chandra filed Suit No. 46 of 1956 on the file of learned Civil Judge, Bareilly claiming a share in the properties described in the plaint schedule attached thereto against Smt. Jamuna Kunwar and his two brothers Jagdish Chandra and Gokul Chandra. A compromise was entered into between the parties. Based on the compromise the Civil Judge, Bareilly passed a decree dated 26-2-1960. The relevant clause in the compromise which has a bearing in this case reads as follows: "The income from the entire disputed property will be received by Smt. Jamuna Kunwar defendant No. 3 for her entire lifetime. She will have the absolute right to spend the income. In the disputed property, after excluding the property worth Rs. 20,000/- the plaintiff and defendants Nos. 1 to 3 have equal shares i.e. every one is the owner of 1/4th share." The decree passed on this compromise to the following effect: "1. The income from the entire disputed property will be received by Smt. Jamuna Kunwar defendant No. 3 for her entire lifetime. She will have the absolute right to spend this income. In the disputed property, after excluding the property worth Rs. 20,000/ (twenty thousand) the plaintiff and the defendants Nos. 1 to 3 have equal shares i.e. every one is the owner of one-fourth share.
(2.) The defendant No. 3 Smt. Jamuna Kunwar is the absolute owner of the above mentioned property worth Rs. 20,000/(Twenty Thousand) and her own above mentioned share in the property.
(3.) Smt. Jamuna Kunwar will remain in possession and will manage the entire disputed property for her lifetime." Based on this decree the suit was filed for declaration with reference to Bungalows Nos. 51, 52 and 53 which were valued at Rs. 20,000/- as seen from the above decree. 2. The specific case of the plaintiff as averred in the plaint was that she was in exclusive possession of these three bungalows. In para 8 of the plaint it was stated that "the plaintiff is the sole and absolute owner of the properties bearing Nos. 51, 52 and 53, Civil Lines, Bareilly as described above and she is entitled to peaceful enjoyment of her properties without hindrance from frustrating defendants 1 and 2 and these defendants have no. right, interest or title whatsoever in these properties". The prayer was to the following effect: "That the plaintiff respectfully prays the Hon'ble Court may be pleased to declare that the plaintiff is the full and absolute owner in possession of the properties Nos. 51, 52 and 53 Civil Lines, Bareilly fully described in para 6 above to the exclusion of the defendants and a decree declaring the above rights interest and title is in the said properties Nos. 51, 52 and 53 Civil Lines, Bareilly, be passed in favour of the plaintiff against defendants with costs of the suit or such other relief be granted to the plaintiff to which she may be found entitled to on the merits of the case". 3. In the written statement of the first defendant in paragraph 8 of the Additional Pleas it was stated thus: "The plaintiff is in the exclusive possession of the properties in suit. The present suit is barred under S. 42 of the Specific Relief Act". In the additional pleas in paragraph 7 of the written statement, the second defendant averred that "the suit is barred by S. 42 of the Specific Relief Act as the plaintiff has never taken judicial possession over the shares of the other co-sharers of the properties mentioned in the suit". In the additional written statement of defendant No. 1 in paragraph 6 it was stated that "the plaintiff is out of possession of the properties in suit".;