- (1.) THIS is a defendant' s appeal arising out of a suit for ejectment, arrears of rent and damages. The plaintiff' s case is that plaintiff No. 1. Lachhman Singh and his sons Ramesh Chandra and Suresh Chandra form a joint Hindu family which is governed by a Mitakshara Law and the plaintiff No. 1 was the manager of the family. According to the plaintiffs they filed a suit for the partition of the joint family ancestral property including house No. 491, Faithfulganj Kanpur, Cantt. impleading defendants Nos. 4 to 6 namely Badri Prasad, Chhedi Lal and Babu lal sons of Hulasi as defendants. The suit had to be filed against defendants Nos. 4 to 6 as they were in actual possession of the joint family property including house No. 491, Faithfulganj, Kanpur, Cantonment and were benefited from the rental income derived therefrom. The suit was decreed and the plaintiffs obtained formal possession through court on 11-12- 1962. It was stated in the plaint that the half share in house No. 491, Faithfulganj, Kanpur, Cantonment, fell to the share of the plaintiffs. In this house defendants Nos. 1, 2 and 3 were tenants at the rate of Rs. 4/- per month. It is further stated that after the decree the defendants Nos. 1 and 2 agreed to continue as tenants and pay monthly rent to the plaintiffs.
(2.) THE plaintiffs further pleaded that defendants Nos. 1 and 2 colluded with defendant No. 3 who was their neighbour and friend, and despite service of notice on them to pay rent refused to pay the same and they continued being tenants of the plaintiffs. According to the plaintiffs the tenancy of the defendants was terminated by a notice dated 27-9-1963. It was further stated that the defendants were liable to pay rent to the plaintiffs from 11-12-1962 on which date the plaintiffs got exclusive possession up to 3-12-1963, the date on which their tenancy was terminated and thereafter they were liable to pay damages at the same rate. It was finally stated that the defendants Nos. 1 and 2 alleged that they have paid rent to defendant No. 3 and claimed to be his tenants. A statement was made in the plaint that defendant No. 3 had been impleaded as party to the suit in order to avoid any technical defects and to set all controversy at rest. A statement was also made that defendants Nos. 4 to 6 were the previous landlords and co-owners of house No. 491, Faithfulganj, Cantonment, Kanpur half of which fell to their share and was possessed by them. No relief was claimed against them. Defendants Nos. 4 to 6 supported the claim of the plaintiffs.
(3.) DEFENDANT No. 3, Devi Prasad who is the appellant in this appeal, contested the suit. It was pleaded by him that the plaintiff and the answering defendants descend from a common ancestor, Gulal, A pedigree was set up. It was stated that the father of the plaintiffs Sri Puran had died, when Lachhman Singh had not been born and Hulasi the brother of Puran had brought up Lachhman Singh and incurred expenses for his maintenance and education. It was stated that Hulasi was in straightened circumstances and required money for the basic necessities of the family and had incurred debts. It was also stated that Hulasi was also looking after and meeting the expenses of food, clothing and education of Lachhman. Badri, Chhedi and Babu Lal, who are his sons and nephews. Hulasi sold house No. 491 to the father of the defendant No. 3, for a consideration of Rs. 500/- which were paid to him in cash. It is stated that no regular sale deed for the said sale was obtained on account of close relationship. However, a writing was executed by Hulasi and handed over to the father of defendant No. 3 acknowledging receipt of the full consideration and promising to execute a sale deed as early as possible. It is further stated that possession was immediately delivered to the father of the plaintiff on 31st March, 1930 when the sale transaction was completed. It is further pleaded that defendants Nos. 1 and 2 and Bhaggoo the brother of defendant No. 2 were kept by the father of answering defendant No. 3 as tenants and so were the occupants of the other portion. As mentioned in the written statement the name of the father of defendant No. 3, Debi Prasad was duly entered in the Assessment Register of the Cantonment Board, Kanpur as owner of the property and on the death of Sri Maiku Lal his sons the answering defendant No. 3 was entered as the owner. It is also pleaded that the defendant had been paying various taxes. A submission of law was made that in view of the facts of the case the answering defendant No. 3 had become full owner and that, in any case the answering defendant' s possession was protected by the doctrine of part performance as contemplated by the Transfer of Property Act. This plea obviously meant that the possession of defendant No. 3 was protected under Section 53-A of the Transfer of Property Act. It is also pleaded that, in any event, the suit was barred by adverse possession as the defendant' s title had become mature by reason of being in possession of the property for more than twelve years.;