Full Judgment Text
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PETITIONER:
SHYAM LAL (DEAD) BY LRS. & ORS.
Vs.
RESPONDENT:
KESHO LAL (DEAD) ANR.
DATE OF JUDGMENT26/04/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 SCC Supl. (2) 594 1995 SCALE (3)544
ACT:
HEADNOTE:
JUDGMENT:
THE 26TH DAY OF APRIL,1995
Present:
Hon’ble Mr.Justice K.Ramaswamy
Hon’ble Mr.Justice B.L.Hansaria
Mr.V.J.Francis, Adv. for the appellants
ORDER
The following Order of the Court was delivered:
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1190 OF 1977
SHYAM LAL (DEAD) BY L.Rs. & ORS. ...APPELLANTS
VERSUS
KESHO LAL (DEAD) & ANR. ...RESPONDENTS
O R D E R
This appeal arises by Special Leave from the Judgment
of the High Court of Allahabad in Second Appeal No.977/72
dated April, 2, 1975. Kesho Lal, respondent No.1, is
represented by legal representatives of the appellants. He
was allotted in 1948 a site by the Allahabad Improvement
Trust in plot No.184 of G.Toula. Thereon, a building was
constructed. Kesho Lal filed Suit No.69/58 for declaration
that he was a sole owner of the said house and for
possession from the respondents brother, Shyam Lal and his
mother. Ultimately, in those proceedings the High Court by
judgment and decree dated May 11, 1966 held thus:
"The direction given by the trail
court is open to several objections.
That direction is in the nature of
partition of the house. Neither the
plaintiff nor the defendants applied to
the court for partition of the house.
The line X Y appears to have been drawn
on the map arbitrarily. The specific
shares of the parties were not
discussed. It is not stated in the
judgment that division of the house is
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in proportion to the shares of the
parties in the joint property. It has
been found that the house was built from
joint family fund. Parties have been in
occupation of different portions of the
house. They should have been left in
possession of those portion. If any
party is left in possession of those
portion. If any party is anxious for a
division of the house, that party must
file a separate suit for partition. For
the present, the parties should be left
to have joint possession of the house
belonging to the family. The direction
in question should be struck off from
the decree. The appeal partly succeeds,
while the cross objection fails."
Thereafter, Kesho Lal filed the suit for partition in
the First Additional Munsiff Court at Allahabad. The trial
court decreed the suit and on appeal in CA No.409/70, the
appellate court allowed the damages for a sum of Rs.6,00/-
but dismissed the suit regarding recovery of possession and
removal of the material. The High Court in the impugned
judgment held that the construction at A, B, C, D and E, F,
G, H were made subsequent to the judgment rendered by the
High Court in earlier proceedings. Accordingly, granted the
decree in favour of the plaintiff-respondents. Thus, this
appeal by Special Leave.
Shri Francis, learned counsel for the appellant
contended that the finding recorded by the High Court that
the construction at A, B, C, D and E, F, G, H places are
subsequent to the judgment is not correct. It being a
finding of fact based on appreciation evidence by all the
courts, we do not find that it is a case for our
interference. The appeal is accordingly dismissed, but
without costs.
It is suggested by Shri Francis that since the
appellants are in possession necessary adjustments may be
thought out by the parties. This order of ours does not
preclude such adjustment as thought desirable by all, which
avoid needless litigation.