- (1.) ALL the above four appeals have been filed against the judgment and decree dated 13-5-1982 passed by Sri K. C. Bhargava, the then learned Ist Additional District Judge, ALLahabad in Civil Appeal No. 46 of 1979, 45 of 1979, 642 of 1979 and 571 of 1979 respectively which were decided by a common judgment.
(2.) KRISHNA Mohan and Ram Mohan, appellants in all four appeals (hereinafter called the appellants) filed Original Suit No. 91 of 1968 on 24-5-1967, through their next friend, against Bal KRISHNA Chaturvedi, the respondent No. 1 in all the four appeals, for permanent injunction, restraining the respondent No. 1 from interfering in their peaceful possession over the open land shown with green colour in the plaint map and house shown with letters Aa, Ba, Sa, Da and red colour in plaint map. The case of the appellants, briefly stated was that the house shown with letters Aa, Ba, Sa, Da existing over Plot No. 905 of Mohalla Daraganj, Allahabad city, was constructed by their father Ram Avtar and he was in possession over it till his lifetime. The open land shown with green colour in the plaint map was appurtenant to the said house and was being used by their father for the purpose of 'sehan' for tethering cattle, preparing cow dung cakes and for keeping other domestic articles. After death of their father the appellants came in possession over the house and the land in suit as its owners. They further pleaded that their father Ram Avatar had perfected his title over the house and land in suit by way of adverse possession and the same was inherited by the appellants. Respondent-Bal KRISHNA Chaturvedi had no concern or connection with the house and land in suit, but he threatened to take forcible possession over it. They further alleged that the mental condition of their mother was not sound and, therefore, she was not competent to become their next friend. Respondent No. 1 Bal Krishna Chaturvedi contested the above suit by filing written statement contending therein inter alia that he purchased the land in suit on 22-4-1961 in auction sale in Execution Case No. 11 of 1960, Lala Munni Lal and others v. Kullu Lal and others, relating to the Court of Additional Civil Judge, Allahabad, arising out of decree in O. S. No. 59 of 1957 and obtained possession through Amin of the Court on 19-7-1966. Since then he was in continuous possession over the land in suit. In the above Execution Case Smt. Ram Kali for herself and as guardian of the appellants filed objection under Order 21, Rule 90, C. P. C. which was rejected on 4-3-1967. Thereafter the mother of the appellants did not file any declaratory suit, therefore, the suit filed by appellants was barred and not maintainable. The mother of the appellants previously claimed herself and her husband as tenant of the house in suit but subsequently the appellants asserted themselves as its owners. Therefore, the suit was barred by principle of estoppel and acquiescence. He further contended that the suit was barred by time, it was not properly valued and the Court-fee paid was insufficient. Thereafter respondent Bal Krishna Chaturvedi filed Original Suit No. 164 of 1971 on 2-10-1971 against Smt. Ram Kali, the appellants, Smt. Malati and Smt. Shanti for recovery of possession over plot No. 905 with superstructures and fixtures standing thereon, numbering 587 and for damages amounting to Rs. 288/- with pendente lite and future damages at the rate of Rs. 8/- per month. The case of respondent Bal Krishna Chaturvedi was that plot No. 905 was Parti land belonging to one Kunnu Lal. He purchased the above plot in auction sale for Rs. 2050/- on 22-4-1961. Kunnu Lal had put a temporary structure in the shape of Kachcha Jhopri over the said land. He got actual possession over the whole of the plot including fixtures standing thereon, in Dakhal Dihani through Court Amin on 10-7-1966 and continued in actual possession thereon. After delivery of possession to the respondent No. 1, Smt. Ram Kali filed objection on 20-7-1966 alleging that her husband Ram Avatar was tenant of the house existing over the above plot and prayed to take back the possession of the property sold in auction sale She also represented herself as guardian of her minor children Krishna Mohan and Ram Mohan, the appellants and her daughters Malti and Shanti. The above objection of Smt. Ram Kali was registered as Misc. Case No. 46 of 1966 Smt. Ram Kali v. Bal Krishna Chaturvedi and was dismissed on 4-3-1967 by 1st Additional Civil Judge and the possession of Bal Krishna was upheld. Thereafter no declaratory suit was filed by Smt. Ram Kali or her sons and order dated 4-3-1967 became final. After filing written statement by Bal Krishna Chaturvedi in Suit No. 91 of 1968 filed by appellants Krishna Mohan and Ram Mohan. Smt. Ram Kali took unlawful possession of the property in the middle of June, 1968, which compelled him to file the suit.
(3.) THE appellants Krishna Mohan and Ram Mohan contested the above suit on the grounds which they had taken in their suit No. 91 of 1968 and raising further pleas of non-joinder and limitation etc. The trial Court (Additional Civil Judge) framed necessary issues in both the suits, separately but consolidated the above suits and decided the same by a common judgment. On considering the evidence of the parties the trial Court held that Ram Mohan and Krishna Mohan had not been able to prove that they are owners of land in suit; that according to sale certificate Bal Krishna Chaturvedi purchased plot No. 905 which was parti land and not structure over it and he did not become owner of the structure in suit. Only land was auctioned; that according to Dakhalnama. Bal Krishna got possession over the parti plot No. 905 and he did not get possession over the house existing over it. The theory of dispossession of Bal Krishna by Smt. Ram Kali had not been proved and Krishna Mohan and Ram Mohan are still in possession till now. He further held that as parti land was auctioned and Bal Krishna got possession over parti land of plot No. 905 and as such he cannot be owner of house No. 587, because he would not get more than what he purchased in auction sale. That suit No. 91 of 1968 and the suit filed by Sri Bal Krishna Chaturvedi were not barred by limitation. Bal Krishna was not entitled for the possession over the house No. 587 and he was entitled for possession over plot No. 905 and that Krishna Mohan and others were entitled for possession over house No. 587. With these findings the trial Court partly decreed the suit Nos. 91 of 1968 and 164 of 1971 restraining Bal Krishna from interfering in peaceful possession of Krishna Mohan and others over house No. 587 and for possession over remaining parti land of plot No. 905 except house No. 587 in favour of Bal Krishna and partly dismissed above suits for remaining reliefs.;