HARI NATH TILHARI, J. - (1.) THIS is defendant's second appeal arising out of the judgment and decree dated 22.9.1978 passed in Civil Appeal No. 103 of 78 arising out of judgment and decree dated 29.3.1978 passed by Shri M.H. Khan, III Additional Munsif, Hardoi in Regular Suit No. 35 of 74 Vishnu Dayal v. Balwant and others. The facts of the case, in brief, could be stated as under.
(2.) THE plaintiff -respondent had filed a suit for permanent injunction restraining the defendants from interfering with the plaintiff's possession over the house in dispute, more specifically described in the plaint and in alternative the plaintiff had prayed for a decree for partition claiming his share to be 3/4th against the defendants. According to the plaintiff's case one Parsadi alias Narpat residing at village Agaulapur Pergana Gopa Mau, Tehsil and district Hardoi was the owner of a house more specifically described in the plaint and the site -plan attached thereto and situated in the aforesaid village Agaulapur, Pergana Gopa Mau, Tchsil and district Hardoi. The plaintiff further alleged that the aforesaid Parsadi alias Narpat had two sons Brij Lal and Bhudhar and on the death of Parsadi aforesaid his two sons succeeded to the interest of Parsadi and became owner in possession thereof as heirs. The plaintiff has further alleged that Bhudhar had died and the widow of Parsadi Smt. Rajwati Devi became his heir. The plaintiff has further alleged that Bhudhar had a son Atma Ram who died during the lifetime of Bhudhar whose widow was Smt. Munni Devi. The plaintiff further -alleged that Smt. Munni Devi, widow of Atma Ram during the lifetime of Bhudhar remarried by system of Gharauna with one Natthu of village Agaulapur. The plaintiff further asserted that Brij Lal son of Parsadi and Smt. Rajwati widow of Parsadi by a registered sale deed dated 11.6.1973 transferred by sale for a consideration of Rs. 2,500/ - their share and interest in the house in dispute, demarcated by letter ka kha Ga Gha in the site plan attached to the plaint. It may be clarified here that by expression ka kha Ga Gha in the site -plan the entire house has been described in the plaint. According to the plaintiff on the basis of the sale deed dated 11.6.1973 executed by Brij Lal and Smt. Rajwati Devi, the plaintiff entered into possession of the house in dispute referred to in the plaint. The plaintiff has also alleged in the plaint that on Bhudhar's death interest of Bhudhar in the house in dispute was also inherited by Bhudhar's mother Smt. Rajwati Devi widow of Parsadi and that according to plaintiffs case the plaintiff has purchased the entire house in dispute vide sale deed dated 11.6.1973 and entered into the possession thereof as owner thereof. The plaintiff further alleged that defendants Nos. 1 and 2 are real brothers and defendants 3 and 4 who are the sons of defendant No. 2 all of them threatend to illegally and forcibly interfere with the plaintiff's possession over the house, in dispute. The plaintiff in the plaint has further stated that defendant No. 1 alleges that he has purchased the house in dispute from Smt. Munni Devi but Smt. Munni Devi has no interest, right or share in the said house and she had no right to make transfer of the same in favour of defendant No. 1, and, as such, according to plaintiff's case the sale deed if any, has been executed by Smt. Munni Devi of the house in dispute in favour of defendant No. 1 the said sale deed is illegal, null and void. In the alternative in paragraph 17 of the plaint it has been stated that in any case even if Smt. Munni Devi is found to be entitled to any share in the property and to make transfer thereof then in that case her interest cannot be more than 1/4th in the house in dispute. The plaintiff, as such, on the basis of above allegations and cause of action has filed the suit giving rise to this appeal for the reliefs already mentioned above.
(3.) THE defendants contested the Plaintiff's case, filed written statement and in accordance with the defendant's case the house in dispute did not belong to Parsadi. Acording to defendant's case neither Parsadi nor Brij Lal nor Smt. Rajwati have been the owners in possession of the said house at any time. According to the defendants case Bhudhar after having separated from Brij Lal, after the death of Parsadi constructed the house in dispute and he was sole owner thereof. The defendants further asserted that Bhudhar had died some eight years earlier and the hosue in dispute was inherited by his son Atma Ram and in 1973 Atma Ram committed suicide and Smt. Munni Devi, widow of Atma Ram inherited the said house being the exclusive heir of Atma Ram and she was in possession. The detendants further asserted that Smt. Munni Devi did not enter into any remarriage in any form with any one. It was also asserted that Smt. Rajwati Devi, widow of Parsadi had also died several years earlier. The defendants asserted that Smt. Munni Devi, widow of Atma Ram vide sale deed dated 9.5.1973 transferred as the exclusive owner of the hosue i.e. the entire suit property in favour of defendant No. 1 and since then the defendant No. 1 is the owner. The defendants denied the plaintiff's possession over the hosue in disptue. The plaintiff had filed replication and on the basis of the pleadings of the parties the learned trial court framed the following issues : 1. Whether the plaintiff is the owner in possession of the suit property? 2. Whether Brijlal and Smt. Rajwati were the owners of the property in dispute and did they on 11.6.1963 execute a registered sale deed in favour of the plaintiff? If so, its effect? 3. Whether Smt. Munni Devi, widow of Atma Ram was the sole and exclusive owner of the hosue in dispute and did she on 9.5.1973 execute a registered sale deed in favour of defendant No. 1? If so, its effect? 4. Is defendant No. 1 owner of the property in dispute? 5. Did Smt. Munni Devi re -marry? If so, its effect? 6. Whether Smt. Rajwati is not the widow of Parsadi? If so, its effect? 7. To what relief, if any, is the plaintiff entitled? The learned trial court after having considered the evidence of the parties has held that the house in dispute belonged to Bhudhar and it did not belong to Parsadi. Bhudhar was its sole owner. On Bhudhar's death Atma Ram son of Bhudhar and widow of Bhudhar Smt. Dharma and mother of Bhudhar Smt. Rajwati succeeded to the said property in equal shares. He further held that on the death of Atma Ram and Smt. Dharma i.e. son and widow of Bhudhar their interest i.e. 1/3 each was inherited by Smt. Munni Devi, widow of Atma Ram and Smt. Munni Devi's share itself became 2/3. He further held that Smt. Rajwati was entitled to 1/3 share and on this basis the learned trial court further held that as Smt. Rajwati had transferred her interest in the property in dispute vide sale deed dated 11.6.1973 in favour of the plaintiff the plaintiff's share is 1/3, while Smt. Munni Devi having transferred her entire interest in the property in dispute in favour of defendant No. 1 vide sale deed dated 9.5.1973 defendant No. 1 became entitled to 2/3 in the house in dispute. He further held that Smt. Munni Devi did not re -marry and had found the allegation made in the plaint to that effect to be incorrect. After having thus considered and recorded findings the learned trial court held the plaintiff to be entitled to a decree for partition of 1/3 share in the house in dispute, and, as such, instead of granting a decree for permanent injunction decreed the plaintiffs suit for partition of plaintiffs 1/3 share as held by it. Having felt aggrieved from the judgment and decree of the trial court dated 29.3.1978 the plaintiff filed an appeal under Section 96 of the Code of Civil Procedure namely, Civil Appeal No.103 of 78 and the defendants preferred cross -objections under Order 41, Rule 22 of the Code. Learned lower appellate court after having heard the learned counsel for the parties allowed the plaintiffs appeal partly and dismissed the defendant's cross objection by judgment and decree dated 22.9.1978. The learned lower appellate court upset the finding of the trial court as regards the ownership of the house in dispute. It held that Parsadi was the owner of the disputed house. He further held that plaintiff was the owner of 5/6 share in the house in dispute. Smt. Rajwati was the widow of Parsadi. The learned lower appellate court further held that there was no dissolution of the marriage of Smt. Munni Devi with Atma Ram during the life time of Atma Ram. He further held that Atma Ram had died during the life time of Bhudhar. He further held that Bhudhar's 1/3 share on his death was succeeded and inherited by Bhudhar's mother Smt. Rajwati and Smt. Munni Devi equally. Thus share of Smt. Munni Devi in the property in dispute was 1/6th i.e. 1/2 of the share of Bhudhar which was only 1/3 in the suit property as on the death of Parsadi the house in dispute was inherited and succeeded by Brij Lal, Bhudhar and Smt. Rajwati, widow of Parsadi equally i.e. 1/3 each. Having thus considered, the learned lower appellate court held that defendant No. 1 vide sale deed dated 9.5.1973 had purchased from Smt. Munni Devi what belonged to her as her share i.e. 1/6th share in the house in dispute. He further held that the remaining 5/6th share did belong to Brij Lal and Smt. Rajwati i.e. son and widow of Parsadi, who in their turn had transferred vide registered sale deed dated 11.6.1973 their entire interest in favour of the plaintiff respondent and thus plaintiffs share was 5/6th in the suit property. The lower appellate court (Civil Judge) modified the trial court's decree to this extent the share of the plaintiff in the house in dispute was not 1/3 but 5/6th while the share of Smt. Munni Devi which she had transferred in favour of defendant No. 1 - -appellant Balwant Singh was only 1/6th and so held the defendant No. 1 to be entitled to 1/6th only which the defendant No. 1 had purchased in the disputed house under the sale deed executed by Smt. Munni Devi in favour of defendant No. 1 - -appellate. The learned lower appellate court affirmed the decree for partition of the trial court with these modifications that plaintiff is granted decree for partition in respect of his 5/6th share in the house in dispute with costs and ordered the preliminary decree to be prepared accordingly.;