- (1.) THIS Is a plaintiffs appeal arising out of a suit for posses sion of a portion of the house shown in yellow colour hi the site plan attached with the plaint. In order to appreciate the facts it would be necessary to set out the admitted pedigree.
(2.) THE plaintiff alleged that Beli Prasad was a member of the Hindu joint family consisting of the plaintiff, defendant No. 1. defendant No. 2, Be hari Lal and Beli Prasad. The joint family owned the house in dispute com ing from Matadin. the common ances tor. Beli Prasad after obtaining the per mission from the notified area on 9th August. 1923 built a house He died on 10th February. 1936. The house then devolved on the plaintiff defendants Nos. 1 and 2 and Behari Lal by survi vorship and became the joint family property. It was alleged that the defen dant No. 1 surrendered his entire inte rest in the aforesaid joint family in cluding the house in suit in favour of the remaining members in lieu of Rs. 2000.00 and separated from the family on the 2nd September. 1945. The plain tiff, defendant No. 2 and Behari Lal. however, still remained joint and the house in suit remained a joint family property. Behari Lal died on 29th May, 1955. The plaintiff .alleged that on the demise of Behari Lal the plaintiff and the defendant No. 2 became the joint owners of the said house by survivor ship. It was also averred in the plaint that the defendant No. 3 filed .a suit No. 706 of 1956 against the defendant No. 4 for partition of her 1/3rd share from the house in suit stating that she was the owner of the said share under a gift made to her by the defendant No. 4. In that suit the plaintiff filed an applica tion for being impleaded as a party but that request was not granted. That suit was decreed in terms of a compromise and the defendant No. 3 took possession over the portion in yellow colour in exe cution of that decree on 27th June, 1957. The plaintiff has. therefore, sought .possession of that portion in that suit alleging that the decree passed in that suit was not binding on him. The suit was resisted by defendants Nos. 1 and 2 on a number of grounds. They alleged that the house in dispute was a self acquired property of Behari Lal and was not the joint family property. Be hari Lal had made a gift of that house to his wife defendant No. 4. who. in her turn, made a gift in respect of 1/3rd share thereof in favour of defendant No. 3. It was also pleaded that in case the gift made by Behari Lal was found to be void the defendants 1 and 2 were also co- sharers in the house. The defen dants 3 and 4 also contested the suit alleging that Behari Lal was the owner of that house and had made the gift of the same in favour of his wife. In the alternative, they pleaded the ownership by adverse possession. In his replication the plaintiff disputed the right of Be hari - Lal who made a gift of the same in favour of defendant No. 4 and re iterated the allegations made in the plaint. The trial Court held that the plaintiff and defendant No. 2 were the owners of the house in suit and that the defendant No, 3 was not the owner of 1/3rd of that house nor the defen dant No. 4 was the owner of the 2/3rd thereof. It also held that the suit was within time. On these findings the suit was decreed against the defendants 1. 3 and 4. Against the said decision the de fendants Nos. 3 and 4 preferred an ap peal. The appellate Court below held On a consideration of evidence on re cord, that the Ahata No. 763 was own ed by Matadin grant father of Behari Lal and the house in dispute was built by Beli Prasad. It was. thus, held that the house in dispute was the joint family property.
(3.) THAT finding is based on an appreciation of evidence and the sur rounding circumstances and I find no reason to interfere with the same. In fact the learned counsel for the appel lant did not dispute this finding. The appellate Court below also held on evi dence that Ram Prakash. the defendant No. 1 had executed .a valid surrender deed Ext. 3 and he had no interest in the house in suit and that the said house remained joint family property of Be hari Lal and his two sons Krishna Das plaintiff and Bishun Narain defendant No. 2 after the execution of the said surrender deed. This finding is also not disputed by the learned counsel for the appellant. The other finding, namely, Smt. Dropadi Devi defendant No. 4 did not acquire any right by virtue of gift deed Ext. B-10 dated 6th October. 1936 executed by Behari Lal is also not chal lenged by the appellant.;