- (1.) THIS appeal is directed against the judgment and decree dated 6.10.2008 passed by the Additional District Judge, Sirohi, whereby the appeal filed by the respondents -plaintiffs was allowed and the cross -objections filed by the appellants - defendants were dismissed, resulting in reversal of the judgment and decree dated 26.10.2007 passed by the Civil Judge (Jr.Div.), Abu Road.
(2.) THE facts in brief may be noticed thus : the plaintiffs Ashok Kumar and Ravi Kumar sons of Harish Chandra filed a suit for possession and recovery of mesne profit against the defendants with the averments that a house situated at Ambaji Road, Mill Kothi Road at Abu Road is of plaintiffs and defendant No.9 ­ Harish Chandra, their father's ownership, the property was ancestral regarding which patta was issued in the name of Maujiram Bhoormal by the erstwhile Sirohi State on 30.7.1903; Maujiram and Bhoormal were members of the Joint Family; Bhoormal had two sons namely Banshi Lal and Matadeen, after whose death the joint property was orally partitioned on 24.8.1978, wherein the suit property came to the share of the plaintiffs and defendant No.9 and they became owners; a part of the suit property is in possession of the plaintiffs. It was claimed that defendants' father Vishambhar Dayal was let -out the the part of the disputed property in Samwat 2004; he paid rent till Samwat 2012 and himself made relevant entries in the books of shop belonging to Maujiram Bhoormal. Whereafter, the salary of Vishambhar Dayal was increased and it was decided that till such time Vishambhar Dayal would do the work of 'MUNEEM'; rent would not be recovered from him for residing in part of the suit property; Vishambhar Dayal died in Samwat 2029, when Seduram and defendant No.9 -Harish Chandra, two senior members of the family of Maujiram and Bhoormal requested the defendants to vacate the suit premises when defendants No.2 to 8 agreed to pay mesne profit for the use of residence after Deepawali. However, when possession was not handed over, then on 22.1.1975 on the shop of Banshi Lal, Seduram on behalf of the defendants No.2 to 8, defendant No.2 Kailash Narayan alongwith his brother -in -law Indra Prasad Jain came and it was decided amongst Seduram, Nawal Kishore, Omprakash and defendant No.9 that defendants would temporarily use the suit property as tenants on payment of agreed rent and defendant No.2 executed an agreement. Whereafter, when the suit property was not vacated, then defendants No.2 to 8 were issued notices by the plaintiffs' Advocate on 19.1.1978 and they were called upon to pay mesne profit at Rs.75/ - per month and handover peaceful possession of the suit property. The notice was replied on 8.3.1978 and it was claimed that defendants No.2 to 8 were owners of the suit property and therefore, the plaintiffs were entitled for possession of the suit property alongwith mesne profit to the tune of Rs. 3,600/ -.
(3.) A written statement was filed by the defendants No.2 to 8, it was claimed that the plaintiffs and defendant No.9 were not owners of the suit property; defendant No.9 has filed suit for eviction, which was pending and therefore, the present suit was not maintainable. It was claimed that Vishambhar Dayal was son of Pyari Bai; working of Vishambhar Dayal as 'MUNEEM' on the shop of Maujiram Bhoormal was admitted and rest of the averments were denied for want of knowledge; it was denied that Vishambhar Dayal took the suit premises on rent in Samwat 2004; it was claimed that they were in possession of the suit property since 1945 and their possession was adverse, open, peaceful and continue, which was never challenged by the plaintiffs and defendant No.9; in the appeal filed by Seduram regarding house tax on 21.3.1980, the defendants were not shown as tenants and the fact of partition was not mentioned; the defendants were heirs of Maujiram Bhoormal and all the members of the family of Maujiram Bhoormal were necessary parties in absence whereof the suit was not maintainable. A replication was filed by the plaintiffs and it was stated that Ghanshyam Das S/o Bhoormal went in adoption to cousin brother of Bhoormal -Mohan Lal and therefore, Ghanshyam Das and his heirs have no right to claim an interest in the property owned by Maujiram Bhoormal.;