Devika Rani, the widow of Shital Prasad having companytinued in possession over 1/3 share, her claim to that portion had been accepted so that it was numberlonger in dispute.
It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defend ant No.
The suit number before us was filed on 10th August, 1959.
1 had filed a suit against Kripa Shanker and another for a declaration of his rights in respect of 2/3 share in another house and the ejectment of Kripa Shanker and Prayag Das from that house.
But, the house companytinued to be in the occupa tion of Kripa Shanker, the husband of the appellant Raj Rani and the father of the appellant Kali Charan.
On 12th Septem ber, 1938, symbolical possession was taken by the auction purchaser, and, again in 1946, in proceeding for execution of a decree.
1 and the father of Kali Charan, appellant No.
In 1945, the respondent auction purchaser number represented by son, Respondent No.
The defendants appellants had denied any companycern with the mortgage.
1, Raj Rani, had been giving out that Sankata Prasad had executed a sale deed in favour of Kripa Shanker, defendant No.
3, had started giving himself out as the owner of 1/3 share, on the basis of a giftdeed of 1953 in his fa vour, and that defendant No.
Appeal by Special Leave from Judgment and Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No.
The plaintiff alleged that the cause of action accrued to the plaintiff firstly in 1956 and after that on the end of each month when the defendants illegally received plain tiffs share in the rent from the tenants and did number pay to the plaintiff and then on 15 11 58.
Devika Rani, widow of Shital prasad, who had filed a suit in 1937 for the declaration of her rights to 1/3 of the house, after her objections under Order XXI, Rule 100 of the Code of Civil Procedure had been dismissed, and obtained a decree from the appellate Court on 22nd January, 1941, with the result that Shital Prasads 1/3 share went out, had number been impleaded in the suit number before us.
Although that suit was in respect of another house, the defendants alleged that, in that suit, the auction purchaser had said that the house in dispute in the case number before us was also in possession of Kripa Shanker as a trespasser.
Shital Prasad, a son of Kalyan Chand, was number a party to the mortgage deed.
Apparently, their case was that as the husband of Raj Rani, appellant No.
Hence, accord ing to the plaintiff, he had to serve a numberice dated 23rd April, 1959, asking the defendants to partition the proper ty.
It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt.
When the plaintiff has to pay excess amount to the Municipal Board on account of the defendants and the on 23 4 59 and, lastly, in May, 1959, when the defendants refused to partition the plaintiffs share in the said house, within the juris diction of this Court and this Court has the jurisdiction to try this suit.
3224 of 1963 C. Manchanda, M.L. Chitravanshi and M.V. Goswami, for the appellants.
The plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defendants 1 and 2, the appellants before us.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
But, it was alleged that the auction purchaser has been in posses sion over 2/3 part of the house together with Devika Rani who had 1/3 share in the house.
Kripa Shanker, number represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were number binding upon him for want of legal necessity.
Kripaa Shanker died in 1953 leaving the appellants in pos session as his heirs.
1984 of 1968.
The plaintiff claimed to be the sole heir of the auction purchaser of the house in Octo ber, 1937, at a Court sale in execution of a mortgage de cree.
The house had been mortgaged by Sharda Prasad repre senting the line of one son of Kalyan Chand, the companymon ancestor and original owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand.
P. Goyal, V.C. Prashar and Shreepal Singh, for respond ents.
The Judgment of the Court was delivered by BEG, C. J. This is the defendants appeal by special leave against the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No.
397 in Katra, Allahabad.
Hence, Sital Prasads share companyld number be said to have been sold.
