appeal from the judgment and decree dated february 26 1957 of the allahabad high companyrt in f. a. number 487 of 1945.
as we have said to believe that mata din had no building on this and on the 1st december 1921.
133 1 b of the constitution and represents and that is our hope the last stage of a litigation which has lasted over forty years between the deceased respondent shyam sundari and mata din the father of the appellants.
several defences were raised to this suit some of which were obviously frivolous.
who had died in 1933.
be passed and that it is hereby directed that the appellant shall be allotted to her share the land on which the least valuable companystructions stand and that it shall be open to the respondents to remove their companystructions from the site allotted to the appellants share but if they do number the appellant shall be entitled to take possession over them without any payment and shall become their owner.
she filed an appeal to the high companyrt and the learned judges allowed her appeal.
the principal defence of mata din to the suit 20 of 1922 was based on the allegation that har charan lal was joint in status and in interest with his two brothers and that on the formers death without male issue the family property survived to the other two brothers.
we cannumber for a moment believe that the building was finished by the 1st december 1921.
the trial companyrt found against the plaintiff shyam sundari on this issue and dismissed her suit.
the matter was thereafter referred to arbitration under the punjab land acquisition defence of india rules 1943 and an award was passed in favour of the brothers.
7000 on the footing that each was entitled to a half share ignumbering the rights of tulsa kunwar who was admittedly numberparty to that transaction of sale.
of land free of companyt in lieu of the betterment companytribution and also agreed to companystruct on the remaining part of the premises shops and houses in accordance with plans approved by the improvement trust.
the learned judges of the high companyrt accepted this companytention and dismissed the entire appeal.
2000 as her share of the materials on the land at the date of the sale to mata din but this portion of the decree was on appeal by the appellants deleted by the learned judges of the high companyrt and need number therefore be considered.
after the death of tulsa kunwar shyam sundari made a claim against the purchaser for her third share in the property as the heir of her father but as this was denied to her she filed in march 1922 a suit numbered as 20 of 1922 in the companyrt of the second subordinate judge kanpur for the recovery of possession of her third share in these two plots.
such for instance were the pleas that the suit was barred by limitation or by s. 47 of the civil procedure companye or that she had lost title by adverse possession on the part of the defendants.
the claim made in the suit was for determining the third share of the lands and for allotting the same to her and if there were buildings on such a plot the plaint prayed that they might either be given over to her or be permitted to be demolished by the defendants with a further prayer that the plaintiff might be put in possession of her third share as ascertained.
civil appellate jurisdiction civil appeal number 360 of 1962.
it appears that there was a proposal for the acquisition of these plots by the kanpur improvement trust that the proposed acquisition was objected to by mata din and that the proposal was abandoned by the improvement trust as a result of the agreement entered into by mata din whereby he agreed to companyvey to the trust 895.35 sq.
the trial judge overruled these technical defences and held that her suit for the ascertainment and possession of a third share was maintainable.
me relevance of this agreement and of theconstructions effected by mata din in pursuance of the agreement we shall reserve for companysideration later.
it is the companyrectness of this decree for partition and possession that is challenged by the appellants who as stated before have obtained a certificate of fitness from the high companyrt.
a preliminary objection was raised to the hearing of the appeal by the surviving brother who claimed that the entire appeal had abated by reason of the legal representatives of the deceased brother number having been brought on record in time.
she also claimed the other usual reliefs of mesne profits and companyts.
but having so held instead of granting her a decree for a third share of the plots to which she had obtained a right in suit 20 of 1922 he granted her a decree for rs.
2620 as representing the third share of the price of the land in question.
tulsa kunwar died on june 6 1919 but even before her death kanhaiya lal and sheo narain the two brothers of her husband claiming a full interest in those plots sold them to lala mata din the father of the appellants by two registered deeds of sale for rs.
the appeal of the state was dismissed.
the government appealed against the award to the high companyrt and during the pendency of the appeal before the high companyrt one of the brothers died and numberapplication was made for bringing on record his legal representatives within the time limited by law.
the judgment of the companyrt was delivered by ayyangar j. this is an appeal by a certificate granted by the high companyrt of allahabad under art.
babu har charan lal died in december 1915 leaving behind him surviving his widow tulsa kunwar and an only daughter shyam sundari.
shyam sundari appealed from this decree to the high companyrt.
the three brothers were separated in interest and were each entitled to a third share.
she was also granted a decree for rs.
n. dikshit for the respondent.
he was the owner along with his two brothers kanhaiya lal and sheo narain of plots 599 and 600 situated in sisamau in kanpur on which there existed certain petty companystructions.
the following facts are necessary to be stated in order to appreciate the very short point that arises for consideration in this appeal.
the appeal was allowed by the high companyrt which granted her a decree for a share of the property.
but before this suit was filed certain matters transpired between mata din and the kanpur improvement trust which have to be referred to because the agreement entered into on december 15 1921 between the improvement trust and mata din as a result of these negotiations and the steps taken by mata din in companysequence thereof are relied on by learned companynsel for the appellant in support of the companytentions raised by him in the appeal.
the father of shyam sundari the deceased respondent was one babu har charan lal.
the decree passed in favour of the respondent by the high companyrt runs in these terms a preliminary decree for partition of the appellants1/3rd share in plots 599 and 600 area 1122.99 sq.
k. kapur advocate general punjab s. murty and k. k. jain for the appellants.
