- (1.) THIS is a defendant's second appeal in a suit for possession over a portion of a house at Mirzapur.
(2.) ONE Lokai had a son Baldeo and two daughters, Smt. Bhagwati Devi and Smt. Satti Devi. Baldeo was married to Smt. Basnati Devi and had a son Badri Prasad and a daughter Smt. Lalmai. Badri Prasad is the plaintiff-respondent. Smt. Bhagwati Devi was married to Mahadeo. They had a son Manni Lal who was married to another lady also named Smt. Satti. Loakai's second daughter Smt. Satti devi was married to Beni Pd. He had two sons Munni Lal and Punni Lal. Punni Lal's son Milap Chand is the defendant appellant. The plaintiff came to court with the allegations that Baldeo was the owner of the house of which the property in suit formed part. He used to carry on some business in which he occasionally incurred debts and, therefore, he executed a sale deed dated 8th April, 1925 of the house in favour of his wife and got it registered in order to keep the house safe although the said sale-deed was not intended to be acted upon. Baldeo remained in possession of the house as owner as long as lie lived. He having died in the year 1927 leaving the plaintiff as his sole heir and that since Baldeo's death, the plaintiff entered into possession as owner and has continued to remain so. It was then urged that the plaintiff's mother Smt. Basanti Devi died in the year 1936 and in spite of the sale deed in her favour she had no proprietary interest in the house and that the plaintiff alone had been in exclusive proprietary possession thereof since the death of Baldeo and even during her lifetime, and that in order to leave no doubts about the correct position the plaintiff's sister Smt. Lalmani executed a deed of relinquishment in respect of the house in favour of the plaintiff on 10th August, 1964. The plaintiff then proceeded on to allege that Smt. Bhagwati Davi and Smt, Satti Devi, sisters of the plaintiff's father Baldeo had no residential house in the town of Mirzapur and their family members wanted to live at Mirzapur in connection with their business whereupon the plaintiff's father allowed them and their husband and their children to live in a portion of the house as a licensee without payment of any rent and that no one of the family of Smt. Bhagwti Devi was residing in the house and only the defendant was living in a portion of the house described at the foot of the plaint as the plaintiff's licensee. It was added by an amendment of the plaint that Smt Satti, widow of Manni Lal (son of Smt. Bhagwati Devi) lived in the house so long as she lived as the plaintiff's licensee and never had any right in the property. The plaint proceeds on to allege that the Plaintiff mostly lives at Calcutta in connection with his business, that on coming to know that the defendant had in connection with recovery of Bhumi Bhawan Kar got a notice issued to himself, the plaintiff filed an objection and the same was summarily rejected without any enquiry on 26th November, 1964. Thereupon the plaintiff warned the defendant several times to refrain from his illegal acts and to admit the plaintiff's ownership but the defendant refused, whereupon the plaintiff revoked the defendant's licence and asked the defendant to vacate the portion of the house in his possession. The defendant refused to do so. Hence the suit. The defendant appellant denied the plaintiff's title and asserted that Baldeo was not the owner of the house and was not in possession, nor was the plaintiff ever in possession; that even if Baldeo had executed any fictitious and sham deed in favour of his wife, it was not binding on the defendant nor did it create any right in favour of the plaintiff and that even if the plaintiff's sister has executed any deed in favour of the plaintiff, it conferred no right, or ownership on him. It was further asserted that Mahadeo, husband of Smt. Bhagwati Devi and Beni Prasad, husband of Smt. Satti Devi were in possession over the house in suit as owners and they or their children never lived as licensees of the plaintiff or his father, nor did plaintiff's father ever give any permission to them and that after the death of Mahadeo half portion of the house in suit came to his son Mann's Lal and after his death to his widow Smt. Satti, who bequeathed the same by a will executed on 21st September, 1961 in favour of the defendant and accordingly after the death of Smt. Satti, the defendant became the absolute owner of the house. In the end it was pleaded in the alternative that even if plaintiff was able to prove that he was the owner of the house in suit, the defendant having been in adverse proprietary possession over the whole house since the time of his ancestors, the plaintiff's rights were extinguished by prescription. It was also pleaded in the alternative that even if the plaintiff was able to prove that his father Baldeo had granted a licence, the licences stood terminated on his death which was more than 12 years ago and the possession of the defendant's ancestors became adverse to the plaintiff ever since, and thus the defendant had continued to be in adverse possession for more than 12 years and the suit was barred by limitation as prescribed by Article 65 of the Schedule to the Limitation Act. The act of the defendant in getting his name recorded as owner before the Bbumi Bhawan Kar Authorities and the dismissal of the plaintiff's objection by him were justified. It was added that most of the house being dilapidated, Manni Lal, son of Smt. Bhagwata Devi had made it pucca with his own money and the plaintiff was neither owner nor did he ever make any construction.
(3.) THE trial Court framed six issues of which the first issue raised the question whether the plaintiff is the owner of the house in suit, the second issue was whether the defendant is a licensee in the house in suit, the third whether the suit is barred by time and the fourth, whether the defendant has acquired title by adverse possession. THE fifth issue related to the valuation of the suit and the court fees payable and having been decided against the plaintiff the valuation was amended and the deficiency made good. THE sixth issue related to the relief to which, if any, the plaintiff was entitled. On the first issue the trial court held that the plaintiff is the owner of the house and is in actual proprietary possession over the disputed portion and that the defendant's case about the ownership was ridiculous. On the remaining issues about the licence and adverse possession, the trial court held that the defendant and Smt. Satti wife of Manni Lal who had executed the will in the defendant's favour were in possession of the portion of the house in snit as plaintiff's licensees and that the first instance of making adverse claim against the plaintiff could be said to be the execution and registration of the will by Smt. Satti in favour of the defendant on 21st September, 1961, but it was not proved that the plaintiff had any notice of the same and that the second instance of assertion of hostile title against the plaintiff was before the Bhumi Bhawan Kar Authority in 1963 onwards. The suit was filed on 3rd June, 1965 and accordingly the issues were answered against the defendant. On appeal before the District Court which was heard and decided by the learned Additional Civil Judge, Mirzapur, three points were formulated as the main points arising for consideration of that court in appeal, namely, (1) whether the plaintiff is the owner of the house in dispute (2) whether the defendant was a licensee of the accommodation in dispute and (3) whether the defendant has perfected title by adverse possession. The learned Additional Civil Judge first took up the point about the ownership and having held that the plaintiff is the owner of the house in suit, he took up the remaining two points for consideration and found that the defendant was a licensee in the house and did not acquire any title by adverse possession. In the result the defendant's appeal was dismissed.;