- (1.) THIS is plaintiff's appeal arising out of a suit filed by Deota Prasad in which a decree for possession over the house and the land in suit was claimed. By way of damages for use and occupation a decree for recovery of Rs. 720/- was also prayed for. The plaintiff's case was that the house in dispute was purchased by Kashi Pd. the father of the plaintiff under sale deed dated 24-8-1943, from one Mahadeo. The consideration for the sale was Rs. 2300/ -. The plaintiff claims to be in possession over the said house since then. In regard to the land shown by letters Aa Ba Sa Da which is adjacent to the house in suit, was it was maintained that it was taken by Kashi Pd on Patta from Deara Estate in the year, 1953 and since then he became owner in possession thereof. Plaintiff's father has let out the house in suit and till his death in 1959 it remained in occupation of the tenants. Even after the death of Kashi Prasad the house remained in occupation of the tenants. The plaintiff's father died on 6-6-1959, when he was a minor and his mother is an illiterate pardahnashin lady who had no capacity to understand the legal transactions. The plaintiff's uncle defendant No. 2 Rameshwar Prasad looked after his person and property after the death of Kashi Prasad. It is further alleged that after the death of Kashi Prasad the plaintiff inherited the house and the land in dispute as his sole heir and remained in possession till the accrual of the cause of action. About three years before the institution of the suit in the year 1969 defendant No. 1 Jhurhoo encroached the land in suit shown by letters Aa Ba Sa Da in the above sketch map and also asserted his ownership and possession over the house in suit. THIS amounted to dispossession of the plaintiff from the property in suit, hence the necessity for filing the suit arose.
(2.) FROM a perusal of the plaint if appears that initially the plaintiff based his claim on the basis of title of the house in dispute and claimed possession Respondent No. 1 Jhurhoo filed the written statement and contested the suit. According to him Triloki Nath and his sons Kashi Prasad and Rameshwar Prasad and also the plaintiff Deota prasad were members of a joint Hindu family governed by Mitakshara. The house in suit was acquired from the joint fund and Triloki Nath, Kashi Prasad and Rameshwar Prasad were co-sharers therein. Kashi Prasad was the eldest son of Triloki Nath. The house in suit was acquired in his name only as a manager of the Joint Hindu family. After the death of Kashi Prasad there was a private partition of the joint family property on 24-6-1959 between Triloki Nath, Remeshwar Prasad and Deota Prasad through his mother Smt. Ram Sumirni Devi and the house in suit was also included therein. The deed of partition was duly registered and all the co-sharers become exclusive owners in possession of the property which fell to their lot. According to the partition the house in suit was allotted to the lot of Rameshwar Prasad and he became exclusive owner and in possession thereof and the land in suit lying towards the west of the house was used as Sahan Darwaza. Rameshwar Prasad sold the house in suit for Rs. 3500/- to one Bhaiya Ram who in turn sold the house to defendant No. 1 Jhurhoo for a sum of Rs. 5000/- under a registered sale deed on 7-7-1971 and put him in possession thereof. Mutation of the house has also been effected in his name and under the said sale deed he became owner in possession of the same. In the alternative Jhurhoo claims to be a bona fide purchaser for value of the property in suit and claimed to be entitled to the benefit of Section 41 of the Transfer of Property Act. Defendant No. 2 Rameshwar Prasad filed separate written statement and contested the suit in so far as it related to the house in suit and admitted the plaintiff's claim with respect to the said house. Defendant No. 2 in his written statement maintained that the plaintiff has neither any interest in the land in suit nor has he ever remained in possession.
(3.) THE plaintiff filed a replication in which it was stated that Triloki Nath and his sons did not constitute Joint Hindu family. THEre was no joint business and Kashi Prasad was not the Karta of the family. In paragraph 13 of the replication it was stated by the plaintiff that the house in dispute belonged exclusively to Kashi Prasad. It was maintained that the property was not liable to be partitioned. Since plaintiff was a minor at the time of his father's death defendant No. 2 after misrepresenting the facts pursuaded the mother of the plaintiff to put her signatures on a document which is said to be a deed of partition. According to the plaintiff the so-called partition deed was obtained by practicing fraud upon the mother of the plaintiff. According to the plaintiff his mother is a pardahnashin lady and was unable to understand the implications of the deed of partition. It is also maintained that since the house in dispute belonged exclusively to Kashi Prasad and after that his mother had no authority to agree to the partition of the house in suit. It is to be noted that the allegations of fraud having been practiced on the mother of the plaintiff and that his mother was a pardahanashin lady and did not appreciate the significance and implications of partition did not find place in the plaint. On the above pleadings a number of issues were framed which are enumerated in the judgment of the trial Court. One of the issues framed was that the suit is barred by limitation. The trial Court dismissed the plaintiff's suit and the decree passed by the trial Court was upheld by the lower appellate Court. The trial Court while recording findings on issue No. 7 held that the suit was within time. However, as a result of findings on other issues the plaintiff's suit was dismissed on merits. The lower appellate Court held that the suit in regard to part of the property was within time and in regard to rest it was beyond time but ultimately on merits he maintained the decree passed by the trial Court and dismissed the plaintiff's suit.;