Amarendra Naih Varma, J. - (1.) THESE two appeals are being disposed of by a common judgment as they arise out of the same suit, being suit no. 956 of 1968 filed by Subodh Chandra Das, the plaintiff appellant in Second Appeal No. 55 of 1981 against the defendant-appellants in Second Appeal No. 3274 of 1980. The plaintiff as well as the defendants both having felt aggrieved by the decision of the lower appellate court have filed the two appeals. The suit was filed againat Satish Chandra Das, Beni Madho Das and Rajendra Prasad respectively arrayed as defendant nos. 1, 2 and 3 in the suit for possession after eviction of Rajendra Prasad as well as for damages for use and occupation against him. Both the defendants nos. 1 and 2 died during the pendency of the suit and are now represented by their heirs and legal representatives arrayed as respondents in these two appeals.
(2.) THE dispute relates to a house no. 7, Minto Park Road, Kydganj, Allahabad. Nut Behari Das, the father of Subodh Chandra Das, Satish Chandra Das and Beni Madho Das aforesaid had acquired a piece of land on permanent lease on which the disputed house was constructed. Nut Behari Das resided in the house along with his family till his death in 1942 leaving his aforesaid three sons as his heir and legal representatives in actual possession of that dwelling house. THE house had been mortgaged by Nut Behari Das and it was later auctioned in execution of a mortgage decree. THE plaintiff got the auction sale cancelled after depositing the mortgage money and then sued his other brothers Satish Chandra Das and Beni Madho Das for contribution. Meanwhile Satish Chandra Das and Beni Madho Das executed an agreement of sale in favour of Rajendra Prasad and in part performance of that agreement allowed Rajendra Prasad to enter into and occupy four rooms, three verandahs, store, kitchen, bath and toilet along with some open space This was done according to the plaint allegation without the knowledge of the plaintiff who was posted outside. It was further alleged in the plaint that the disputed house was an undivided dwelling house of the plaintiff and his aforesaid two brothers and Rajendra Prasad being a complete stranger to the family had no right to acquire the house or to disturb the possession and privacy of the plaintiff over the same. THE defendants nos. 1 and 2 also had no right to deliver possession to Rajendra Prasad. THE plaintiff was thus deprived of the full and free enjoyment of the disputed dwelling house Consequently the suit for the reliefs mentioned above. All the three defendants filed a joint written statement. Their defence was that the defendants nos. 1 and 2 had entered into an agreement to sell their two third share in the house and the land to Rajendra Prasad for a sum of Rs. 15,000/- out of which they had taken Rs, 8,000/- as earnest money. In part performance of the contract possession was duly delivered by the defendants nos. 1 and 2 of the portion of their house in their occupation to Rajendra Prasad who was since in possession as a co-owner of the disputed house without disturbing in the least possession of the plaintiff over the portion in his occupation. Besidest Rajendra Prasad had also purchased one- third share of Beni Madho Das at the court auction held in execution of the decree passed in suit no. 877 of 1966 and in pursuance thereof possession had been duly delivered to him on 24-7-70 vide paper no. 173 C, the dakhalnama (delivery memo). A sale certificate had been issued in favour of Rajendra Parsad. Thus Rajendra Prasad was in occupation of the disputed house both in part performance of the agreement for sale as well as purchaser of the one-third share of Beni Madho Das at a court auction in execution of the decree passed in the aforesaid suit. Rajendra Prasad was, therefore, not a trespasser but in lawful occupation as a co-owner of the disputed house and hence could not be evicted therefrom. On these pleadings relevant Issues were framed by the trial court. It held that Rajendra Prasad was not a trespasser and that the remedy of the plaintiff lay in a partition suit and not a suit for the ejectment of the defendant no, 3. On these and other findings the suit was dismissed. Aggrieved by that decree, the plaintiff filed an appeal which has partly succeeded.
(3.) ON appeal by the plaintiff, the lower appellate court affirmed the findings of the trial court on the issue that Rajendra Prasad was a co-owner possessing two-third share in the disputed house and being in occupation as a co-sharer he could not be evicted. In regard to Section 44 of the Transfer of Property Act, the lower appellate court expressed the view that if Rajendra Prasad had not already been in occupation of the house as a co-owner he would not have been entitled to bring a suit for joint possession. However, as he was already in possession he could not be dubbed as a rank trespasser liable to be evicted. The lower appellate court, however, negatived the plea of Rajendra Prasad that there was already a partition between Subodh Chandra Das and his other two brothers and that, therefore, it could not be said that the house belonged to an undivided family within the meaning of Section 44 of the Transfer of Property Act. The next finding that needs to be noticed is that Rajendra Prasad has, after he entered into possession, constructed a wall whereby he has deprived the plaintiff of the used of common amenities, such as, toilet and the bath room, etc The plaintiff has in deed been ousted from user of those amenities and hence become entitled to a decree for joint possession over the disputed property. The lower appellate court, however, declined to pass a decree for eviction against Rajendra Prasad. The result was that the appeal filed by the plaintiff was partly allowed. A decree for joint possession was passed in favour of the plaintiff and against all the defendants after removal of the wall stated to have been constructed by Rajendra Prasad. As mentioned above, both the parties have felt aggrieved by the aforesaid decree and, therefore, the two appeals. Sri Rajeshwari Prasad, learned counsel for Rajendra Prasad, submitted that the lower appellate court should have dismissed the suit in to to while Sri Markandey Katju, the learned counsel for Subodh Chandra Das, vehemently contended that in view of the second part of Section 44 of the Transfer of Property Act and in view of the various authorities cited by him, the suit should have been decreed in its entirety.;