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2007 DIGILAW 233 (PAT)

Firm Dressco Through v. Lakshman Prasad

2007-02-02

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. This Second Appeal arises out of a judgment and decree dated 7.8.2003 by which the learned 1st Addl. Fast Track Court at Siwan allowed T.A.No. 132 of 1998 and reversed the judgment and decree dated 24.9.1988 passed by the learned Vlth Sub-Ordinate Judge, Siwan dismissing Title Suit No. 109 of 1994 filed by the plaintiff-respondent no.1. 3. The aforesaid Title suit was filed by respondent no. 1 Lakshman Prasad for declaration that he was the owner of the suit properties and the defendants (appellants) were his tenants and also for eviction of the defendants from the suit properties. Although the said suit was dismissed by the trial court, but the learned court of appeal below allowed the plaintiffs Title Appeal and decreed the claim of the plaintiff. The defendants being aggrieved by the judgment and decree of the lower appellate court have preferred the instant second Appeal. 4. From the records of the case it appears that Badri Prasad had two sons, namely Bhagwan Prasad and Lakshman Prasad, and daughters including Kanti Devi, deceased wife of defendant no. 2 Raghubansh Mani (appellant no. 2 in this case). It is not in dispute that the suit properties along with several other properties were the ancestral properties of the family and there was a partition between the aforesaid Badri Prasad and his brother in the year 1956, according to which the properties involved in the instant suit as well as some other properties came into the share of Badri Prasad. Thereafter, there was Title (Partition) Suit No. 36 of 1963 between Badri Prasad and his wife and two sons, which was disposed of on compromise, according to which the suit properties along with some other properties fell into the share of the two sons of Badri Prasad, namely Bhagwan Prasad and Lakshman Prasad, and his wife. Thereafter Title (Partition) Suit No. 66 of 1964 was filed which was contested between the said two sons, namely Bhagwan Prasad and Lakshman Prasad, and their mother which was also decided on compromise, according to which the suit property along with some other properties fell into the share of two brothers, namely Bhagwan Prasad and Lakshman Prasad. 5. Thereafter Title (Partition) Suit No. 66 of 1964 was filed which was contested between the said two sons, namely Bhagwan Prasad and Lakshman Prasad, and their mother which was also decided on compromise, according to which the suit property along with some other properties fell into the share of two brothers, namely Bhagwan Prasad and Lakshman Prasad. 5. It is the case of the plaintiff-respondent that in the year 1969 the above named Bhagwan Prasad and Lakshman Prasad (plaintiff-respondent) amicably partitioned their properties, according to which the suit properties, which is the western portion, came into the share of plaintiff-respondent Lakshman Prasad. It is also clear from the records that the mother of the two brothers Bhagwan Prasad and Lakshman Prasad died in the year 1964, whereafter Partition suit no. 59 of 1965 was contested between her sons and daughters with respect to properties which had fallen into the share of the mother in the aforesaid Title (Partition) Suit no. 66 of 1964 and finally Partition suit No. 59 of 1965 was also disposed of on compromise, according to which some property of the mother was allotted to the said Kanti Devi specifically mentioning that she has no interest in any other property. Subsequently, Kanti Devi died in the year 1992 leaving behind a husband and two sons who were defendants nos. 2 to 4 in the trial court and appellants nos. 2 to 4 in the instant Second Appeal and they jointly own the firm M/s Dressco., which was defendant no. 1 in the trial court and is appellant no. 1 in this appeal. 6. On the other hand, the defendants-appellants are claiming the suit properties on the basis of oral gift by Badri Prasad to Kanti Devi at the time of her marriage in the year 1948. However, learned appellate court has considered the matter in detail and has found that there is no material at all to substantiate or support the aforesaid claim of gift, which was an oral gift, which cannot be relied upon in accordance with law. 7. Furthermore, it is clear from the record of the case that Title Suit No. 18 of 1964 was filed by a co-sharer of defendant no. 2 (appellant no. 2) against defendant no. 2 in which defendant no. 2 appeared and filed a written statement and during hearing of the said suit the witness of defendant no. 7. Furthermore, it is clear from the record of the case that Title Suit No. 18 of 1964 was filed by a co-sharer of defendant no. 2 (appellant no. 2) against defendant no. 2 in which defendant no. 2 appeared and filed a written statement and during hearing of the said suit the witness of defendant no. 2 specifically stated that defendant no. 2 was a tenant in the suit premises for which he was paying rent and receipts were being issued to him which were made exhibits in the said suit and were proved by the said witness. In the said circumstances, it is quite apparent that defendant no. 2 cannot now be legally allowed to take a U-turn and deny the said receipts stating that the same were forged and fabricated and he is not a tenant of the suit premises. 8. Furthermore, since the properties in the instant suit had fallen in the share of the plaintiff-respondent on the basis of decree of court of law, defendant no. 2 or his wife could not have any legal right or claim over the same and hence possession of the defendants-appellants was not on the basis of right or title or share, rather it was merely as a tenant. In the said circumstances, the learned court of appeal below has rightly come to the conclusion that the plaintiff has right and title over the suit property and the defendants were his tenants who had defaulted in payment of rent as it was the claim of the defendants themselves that after the period of aforesaid rent receipts they had not paid any rent and hence they were rightly directed to vacate the suit premises. 9. I do not see any illegality in the impugned order and nor any substantial question of law arises in this Second Appeal and, accordingly, the same is dismissed.