SHARMA, J. - (1.) THIS appeal under Section 96 CPC arises out of the judgment and decree dated 1. 6. 1984 passed by the learned District Judge, Sawai Madhopur, whereby the learned Judge has decreed the plaintiffs' suit.
(2.) PLAINTIFF Ramjani filed a suit against the defendants for declaration and possession on 0. 1. 1975. On 5. 5. 1977 the plaintiff filed an application for amendment in the plaint, which, after hearing counsel for the parties, was allowed vide order dated 22. 7. 1977 and accordingly the plaintiff filed amended plaint on 6. 8. 1977. The plaintiff claimed himself to be the owner of the property, viz. , 3 shops and 3 rooms on the floor on the basis of Patta issued on 15. 9. 58. He continued to reside in the rooms. Out of 3 shops, he gave center shop to his father Chand Khan for his residence and let out remaining shops to the tenants. It was averred that his mother died when he was 8 years old and after the death of his mother, his father got married to Smt. Bashiran, defendant No. 2 and out of this wedlock defendants No. 1 and 3 to 7 were born. Feeling aggrieved by the behaviour of his father, due to his step mother, the defendant left his house in 1968 and started living in some other house. The plaintiff averred that his father with an intention to gulp shops in dispute filed a suit No. 180/71 for declaration and permanent injunction in the Court of Munsiff, Sawai-Madhopur, which came to be decided on 27. 9. 73. In that suit, the plaintiff filed written statement and moved an application for requisition of original record containing original Patta, from Municipal Board, Sawai Madhopur. Chand Khan by filing application disclosed the fact that he had mortgaged the disputed shops to one Kanhaiyalal, father of Shri Narain, defendant No. 8 and handed over the Patta to Kanhaiyalal and Kanhaiyalal since died, the original patta be requisitioned from Narayan. During pendency of that suit, Chand Khan expired. After the death of Khan Khan, none prosecuted the said suit and accordingly the trial Court dismissed the suit on 27. 9. 93. It appears that defendant No. 8 also filed a suit for eviction and arrears of rent against the plaintiff defendants No. 1 to 7 in which the defendants No. 1 to 7 challenged the ownership and rights of the plaintiff over the disputed shops and claimed themselves to be in possession thereof in the capacity as owners. In fact, according to he plaintiff, the defendants had no concern with the shops in dispute. The plaintiff requested the defendants on several occasions to hand over physical possession of the shops in dispute to him, but defendants did not pay any heed. In the circumstances, therefore, the plaintiff had no option but to file the present suit. The defendants No. 1 to 7 contested the suit by filing written statement and denied the averments of the plaint. According to the written statement, the property mentioned in para 2 of the plaint was the earned property of Chand Khan himself and Chand Khan got done the entire construction. It was further stated that the shop including room constructed over it towards east of the disputed property, situated adjacent to the shop of Rahim Bux was given in `mehar' to Smt. Bashiran through a registered gift deed dated 28. 7. 66 and physical possession of the same was also handed over to her and therefore, since that day, defendant No. 2 is exclusive owner of the same. As regards remaining property, namely, two shops and residential portions over these shops, it was stated that the same was given to Smt. Bashiran through a registered will dated 2. 12. 1972 for the purposes of maintenance and marriages of her bachelor daughters. It was further stated that after the death of Chand on 29. 6. 73, Mst. Bashiran defendant No. 2 remained the only owner of the disputed property. According to the defendants, since the plaintiff tried to take forcible possession, therefore, the deceased Chand Khan had to no option but the file the suit for declaration. The defendants stated that plaintiff has not stated as to how the gained the aforesaid property and in view of the gift deed and will in favour of defendant No. 2, the plaintiff is not entitled to get declaration in his favour and that he has no right to get actual physical possession of the disputed property. The defendants have further stated that the suit having been filed in 1976 is barred by limitation. In the additional pleas, it has been stated that defendant No. 2 has been residing in the disputed property for last 40 years, while defendant No. 1 and 3 to 7 have been residing there since their birth and as such right of ownership has automatically accrued in their favour. Defendant No. 8 has filed separate written statement, in which it has been stated that property in dispute which continued to be possession of Chand Khan father of defendants No. 1 and 3 to 7 and husband of defendant No. 2 Mst. Bashiran was mortgaged by Chand Khan with his father Kanhaiyalal. according to defendant No. 8 the other defendants are in possession of the disputed property and that defendants No. 1 to 7 have been residing in the disputed property in their capacity as tenants. The liability over the disputed property is to the extent of Rs. 8000/-, to which the defendant no. 8 is entitled to receive. according to him, the plaintiff and defendants No. 1 to 7 are liable to pay the aforesaid sum of the reasons that aforesaid amount was taken for the purposes of construction of disputed shops. On the basis of pleadings of the parties, the learned trial Court framed issues and at the conclusion of trial, the learned trial court vide its judgment and decree dated 1. 6. 84 decreed the plaintiff's suit. Hence, the present appeal by defendants No. 1 to 7. Challenging the findings arrived at by the trial Court, Mr. Mehta, Sr. Advocate appearing for the defendant appellants has, inter-alia, strenuously contended that the sole basis of the plaintiff's case was that the property in dispute was partitioned by late Chand Khan during his life time. However, the plaintiff has miserably failed to prove the partition of the property. Mr. mehta further contended that the learned trial Court has committed serious error in declaring the plaintiff as owner of the suit premises and that too on the basis of patta Ex. 4 issued by the Municipal Board in favour of the plaintiff. According to him, there was hardly and occasion for the Municipal Board to have granted Patta. The plaintiff only applied for grant of permission to raise construction and the Municipal Board first granted permission and then issued Patta. As such the approach of the learned trial Court is erroneous inasmuch as the ownership cannot at all be derived on the basis of a patta which is a subsequent document alleged to be issued by the Municipal Board.
(3.) THE next argument of Mr. Mehta is that there is an over- whelming evidence to show that Chand Khan and Ramjani were living jointly. It has also come in evidence that Chand Khan applied for permission to raise construction. he was an old and infirm person and therefore, merely by grant of permission to raise construction or issuance of patta in favour of Ramjani, it cannot be said that Ramjani has become owner of the property belonging to Chand Khan, unless and until the property is given to the plaintiff by owner himself. It has been argued that learned trial Court has not discarded the defendants' evidence, but on the contrary it has held that properties in questions appears to have been constructed by Chand Khan and Ramjani jointly. Some old the witnesses have stated that Chand Khan was an old man and therefore Ramjani used to help him. Thus, the trial Court has committed serious error in mis-interpreting the statements of the defendants' witnesses and has erred in drawing an erroneous inference from the statements to the effect that Ramjani was the owners of the disputed property and that he constructed the suit premises. Learned counsel then argued that the court below has seriously erred in not taking into consideration the fact that the suit premises have been let out by Chand Khan and Smt. Basiran since long before filing the suit. Smt. Bashiran used to realise the rent. Some of the rent notes viz. , Ex. A-1, A-11 and A-14 belong to the year 1958. According to him, the trial Court has brushed aside the evidence regarding leting out the suit premises by Chand Khan and Smt. Bashiran in a very casual manner by observing that it did not effect the right of the plaintiff as owner of the disputed property. Per contra, learned counsel for the plaintiff respondent has supported the findings arrived at by the learned trial Court and argued that the trial Court has decreed the suit on appreciation of evidence in true perspective and hence, the impugned judgment and decree call for no interference. ;