- (1.) In this appeal on 22.2.2012 following order was passed: Heard learned counsel for the parties at the admission stage. Order reserved. Yesterday the court had inquired from learned counsel for the appellant as to whether appellant was ready to pay Rs. 1.80 lacs to the respondents. Today Shri S. C. Tripathi, learned counsel states that the appellant is ready to pay the aforesaid amount however. Shri Atul Dayal, learned counsel for the respondents states that his clients are not ready to accept the said amount and that even before the courts below respondents had offered Rs. 1.50 lacs to the defendant-appellant, which was not accepted. It has further been stated that respondents are still ready to pay the said amount or even some more amount. Learned counsel for the appellant states that his client is also ready to enhance the amount to some extent. Until delivery of order status quo as prevailing today shall be maintained. Neither any demolition shall take place nor any construction shall be made by either of the parties. In Execution Case No. 12 of 1996, filed for execution of decree passed in Original Suit No. 127 of 1949. Manohar Lal Kanodia v. Dhan Rajee, appellant Suresh Chandra Tripathi filed objection under Order XXI, Rule 97, C.P.C. in the form of Case No. 176/74 of 2005 claiming independent right in part of the house which was subjudice in the said suit and execution case. The objections were rejected on 13.7.2009 by Civil Judge (Senior Division) Kanpur Nagar. By virtue of Order XXI, Rule 103, C.P.C. such type of order is decreed and appealable as such. Accordingly, against the said order/decree Suresh Chandra Tripathi the objection filed Civil Appeal No. 85 of 2009 which was dismissed by Additional District Judge, Court-No. 1, Kanpur Nagar on 14.12.2011 hence this second appeal.
(2.) House No. 85/74 was in dispute in O.S. No. 127 of 1949. The present dispute relates to part of the said house. Dhan Rajee defendant in O.S. No. 127 of 1949 died in the year 1968. She was survived by two sons Indra Prasad and Ram Subhag, However in the appeal which had been filed by Dhan Rajee (Civil Appeal No. 69 of 1963) against decree passed by the trial court only Indra Prasad was substituted at the place of Dhan Rajee but not Ram Subhag the other son. Ram Subhag filed O.S. No. 113 of 1989 against Indra Prasad which was decreed through compromise on 3.2.1993 and the portion of the house in dispute fell in the share of Ram Subhag. The case of the appellant is that he was inducted in a part of house No. 85/74 as tenant by Indra Prasad. Further, case is that after the compromise decree dated 3.2.1993 passed in O.S. No. 113 of 1989 in between the two brothers, the said portion fell in the share of Ram Subhag hence the appellant on 13.7.1999 through registered sale deed purchased the said portion (already in his tenancy occupation) from heirs of Ram Subhag as he had died. It was further contended, and it was the main point, by the appellant that decree passed in O.S. No. 127 of 1949 was not binding upon Ram Subhag as he was not impleaded therein and as appellant had purchased the property from the heirs of Ram Subhag after his death hence was neither Ram Subhag nor his heirs nor the appellant bound by the decree passed in O.S. No. 127 of 1949. Both the courts below have rightly rejected this contention.
(3.) Ram Subhag never cared to get himself impleaded in O.S. No. 127 of 1949 after death of his mother Dhan Rajee, who was defendant therein. Even in the appeal filed against the decree passed in the said suit he did not get himself impleaded/substituted. On the doctrine of sufficient representation of the estate Ram Subhag is as much bound by the decree passed in the O.S. No. 127 of 1949 as his brother Indra Prasad who was substituted in the suit at place of Dhan Rajee. Moreover, if it is held that Ram Subhag had no concern with the house in dispute and it was Indra Prasad who alone inherited the house from his mother Dhan Rajee still appellant cannot any benefit. Both the brothers Ram Subhag and Indra Prasad got O.S. No. 113 of 1989 decreed through compromise on 3.2.1993. Accordingly, Ram Subhag got the property (house in dispute) from his brother Indra Prasad hence he cannot claim better right than Indra Prasad or any right independently of Indra Prasad. There is no question of applicability of Section 41, Transfer of Property Act in such scenario.;