A. B Srivastava, J. - (1.) THIS is a second appeal against a decree and Judgment, dated 31-8-1985, of the VIII Additional District Judge. Meerut allowing the appeal of the plaintiff-respondents, setting aside the judgment and decree of the trial court and decreeing the suit for possession and injunction.
(2.) SUIT No. 406 of 1976 was filed by the plaintiff-respondent no. 1 alleging that by means of a family partition evidenced by a partition deed dated 17-8 1939 between Murari Lal (original defendant no. 3), his wife Smt Birma Devi and son Ram Saran Das the plaintiff, the Joint family property was partitioned- The property mentioned in lot in the partition deed went to the share of Murari Lal. lot 2 to the share of Birma Devi and lot 3 to the share of the plaintiff Smt. Birma Devi according to the deed of partition was to have only limited estate to the property in lot 2. Amongst other properties house nos 10 to 13 and 13 A were allotted In the share of Murari Lal The said Murari Lal sold the aforesaid house nos. 10 to 13 and 13A as described in para 6 of the plaint in favour of the defendants no. I and 2 by registered sale deed dated 21st January, 1966. Adjacent towards west of property no. 13A sold by Murari Lal is situated garden which was allotted to the share of Smt. Birma Devi. In a portion of the garden, adjacent to the well, in the year 1948 the plaintiff had built a stair case, a room and a tin shed. Taking advantage of his influence over Smt. Birma Devi, Murari Lal opened a door, of his premises no. 13A which was a garrage, towards the garden in the year 1952, a notice regarding which was given to him by the plaintiff. Smt. Birma Devi died on 25-2-1976 whereafter the properties in lot 2 reverted to the plaintiff and Murari Lal as full owners. While executing the sale deed dated 21-1-1966 Murari Lal with the connivance of Birma Devi made a wrong description of the boundaries and thus included the stair case, room and tin-shed constructed by the plaintiffs in the property transferred. The consent, if any, of Birma Devi however, did not have any effect on the rights of the plaintiff as she had only a limited estate. The plaintiff filed SUIT No. 535 of 1966 before City Munsif, Meerut. The suit, however, was not pursued because the property was to revert back to the plaintiff after the death of Birma Devi and it was dismissed for default on 24-1-1967. The defendants no. 1 and 2. on the strength of the said sale deed filed an ejectment suit in the court of Judge Small Causes stating defendant no. 4 Kaushlya Devi to be a tenant of a room situate in the 'baagicha'. In the said suit the plaintiff applied for being impleaded as a party but the said application was dismissed. After the death of Birma Devi the possession of the defendants no. 1 and 2 over the property in dispute is that of tresspasser and they have no right to remain in possession over the same, to realise its rent or to have egress and ingress into the garden through the intervening doors. Since despite the request and demand of the plaintiffs the defendants 1 and 2 failed to hand over possession of the property in dispute and to refrain from realising rent, the suit was filed for possession and for permanent injunction. The contesting defendants, no. 1 and 2, pleaded that prior to 1939 the plaintiff and his father defendant no. 3 Murari Lal formed a joint family. The partition of the said property took place in the year 1939 dividing the properly in 3 shares, as evidenced by partition deed dated 17-8-1939, amongst the plaintiff, his father Murari Lal and mother Birma Devi. The disputed property shown by red colour in the plaint map came to the share of Murari Lal, defendant no. 3. It was not given in the lot of Birma Devi. Murari Lal who was the owner of the property in suit, transferred the same along with house nos. 10 to 13 and 13A In favour of the defendants no. 1 and 2 by sale deed dated 21-1-1966. The defendants no. 4 and 6 thus became the tenants of the defendants no. 1 and 2 after the aforesaid sale deed and the defendants no. 1 and 2 became entitled to realise rent While the defendant no. 6 refused to recognise the plaintiff as landlord, the defendant no. 4 colluded with the plaintiff and paid rent to him. A decree for her ejectment, however, has been passed in Suit No. 591 of 1976 by the J.S.C.C. Meerut. Smt. Birma Devi who got 1/3rd share in the Joint Hindu Family property mentioned in lot no. 2 in the partition deed became its absolute owner after passing of the Hindu Succession Act. By means of a will dated 27-9-1968 she disinherited the plaintiff and defendant no. 3 of her property. The construction standing in the disputed land has not been made by the plaintiff, the door connecting premises no. 13A with the 'Baagicha' was in existence even at the time of partition. The plaintiff has no locus standi to bring this suit. The trial court dismissed the suit of the plaintiff with a finding that the property in dispute was allotted to the share of original defendant no. 3 Murari Lal who sold it to the defendants nos. 1 and it by a sale deed dated 21-1-1966. The constructions on the disputed land were not made by the plaintiff, as such there is no question of his being owner thereof This property was not allotted in the share of Smt Birma Devi in the partition. In any case the limited] estate given to her In the properties allotted in the partition matured into absolute right under section 14 (1) of the Hindu Succession Act On appeal being filed by the plaintiff, the first appellate court came to the finding that the disputed property is not part of house no- 13-A and was not allotted in lot no. 1 in the share of Murari Lal rather it was part of Baagicha allotted in the share of Smt. Birma Devi by means of lot no 2 The constructions in the disputed land were not in existence at the time of partition in the year 1939 rather were made subsequently by the plaintiff If further found that Smt. Birma Devi has no existing right in the property prior to the partition in the year 1939. For the first time she got her right in this property by means of the partition deed which allowed her only a life interest in the property allotted in her share The said property devolved upon the plaintiff and Murari Lal after the death of Smt. Birma Devi. Murari Lal executed a will of the property of his share in favour of Smt. Omwati, the wife of the plaintiff and after the death of Omwati the same devolved upon her husband, the plaintiff, and sons and daughters defendant nos. 3/1/1 to 3/1/9 The present suit or the plaintiff is also not barred by order 9 rule 9 CPC on account of dismissal of earlier suit no. 535 of 1966, being based on different cause of action.
(3.) WITH these findings the first appellate court allowed the appeal and reversing the decree of the trial court, decreed the plaintiff's suit for possession and injunction. Learned counsel for the parties have been heard and record has been perused.;