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Kesardeo and ors. Vs. Hariram and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil First Appeal No. 6/1971
Judge
Reported in1982WLN730
AppellantKesardeo and ors.
RespondentHariram and ors.
DispositionAppeal allowed
Cases ReferredIn Shambhu Prasad Singh v. Mst. Phool Kumari and Ors.
Excerpt:
limitation act - article 120--limitation--suit for declaration of right of joint management--coowners in exclusive management for a long time--no ipso facto adverse possession--cause of action arises when hostile title is asserted against other coowner--held, suit filed within 6 years is covered by article 120 and is within limitation;the defendants came into possession on the basis of a lawful title, as the co-owners of the said properties and merely because they were in exclusive management for a very jong period, their possession could not ipso facto become adverse;a cause of action for filing a suit by a co-owner, who is not in possession of the joint properly, arises when and only when the other party begins to assert openly a title hostile to the other co-owner. that is the point of.....dwarka prasad gupta, j.1. this first appeal has been filed by the plaintiff's whose suit for declaration was dismissed by the trial court on the ground that it was barred by limitation.2. the case of the plaintiffs was that bhagwandas and madan gopal, who were the ancestors of the parties, jointly purchased some land and constructed temples of pitreshwerji and hanumanji and such land and a well, a tank and a 'bagichi' were also made. according to the plaintiffs, the descendents of both bhagwandas and madangopal jointly defrayed the expenses incurred in the maintenance of the aforesaid temples and other structures constructed over the land upto samvat 2000. thereafter the plaintiffs suggested that the parties may manage the aforesaid properties by turns, but the defendants postponed a.....
Judgment:

Dwarka Prasad Gupta, J.

1. This first appeal has been filed by the plaintiff's whose suit for declaration was dismissed by the trial court on the ground that it was barred by limitation.

2. The case of the plaintiffs was that Bhagwandas and Madan Gopal, who were the ancestors of the parties, jointly purchased some land and constructed temples of Pitreshwerji and Hanumanji and such land and a well, a tank and a 'Bagichi' were also made. According to the plaintiffs, the descendents of both Bhagwandas and Madangopal jointly defrayed the expenses incurred in the maintenance of the aforesaid temples and other structures constructed over the land upto Samvat 2000. Thereafter the plaintiffs suggested that the parties may manage the aforesaid properties by turns, but the defendants postponed a decision in the matter and did not pay any attention to the suggestion made by the plaintiffs but continued to manage the temples and other properties unilaterally in their own manner, which resulted in mis-management of the properties. According to the plaintiffs, they were thus deprived of their right of management and supervision of the religious endowment. According to the plaintiffs, ultimately on December, 21, 1961 the defendants refused to allow the plaintiffs to take .part in the management and supervision of the joint properties of the temples of Pitreshwarji and Hunmanji etc A suit was filed on January 12, 1962 in the court of Senior Civil Judge, Churu in which the plaintiffs prayed that it may be declared that the plaintiffs and the defendants were the joint owners in equal shares of the aforesaid religious and charitable properties and both of them were also entitled to have equal share in the management of the said joint properties. The plaintiffs also offered to make payment of the half share of the expenditure inccurred by the defendants in the management of the disputed properties since Samvat 2000 & proposed that the parties may be allowed to manage the religious & charitable properties by turns.

3. The defendants in their written-statement admitted that Bhagwan Das and Madangopal were the ancestors of the parties and they also admitted that the land in dispute was jointly purchased by Bhagwandas and Madan Gopal, ancestors of the parties and the 'Bagichi' and temples were jointly constructed by them, in which both the parties incurred expenses. The defendents also admitted that in the 'pattas' of the land in dispute, the names of Bhagwandas and Madangopal were mentioned as they were the senior-most members of the joint Hindu families of the plaintiffs and the defendants respectively. But according to the defendants, thereafter the plaintiff's ancestors refused to make payment of their share of expenses and they relinquished their rights in the disputed properties and told Bhagwandas that he may alone enjoy the properties and may make further constructions in the disputed land at his sweet will. The defendants's case further is that though the defendants have spent Rs. 20.000/- in the constructions and on managements of the properties in dispute, yet the plaintiffs ancestors spent only Rs. 8,800/-. The defendants asserted that from the very beginning the management of the properties was in the hands of their ancestors and the defendants were managing the properties in dispute in a proper manner The defendants further stated that although the plaintiffs have a right of going to the temples for worshipping the dieties and the defendants never caused any obstruction, yet the right of management vested exclusively in the defendants, since the time of their ancestors and the plaintiffs do not have a right to demand any share in the management of the properties in dispute. The defendants pleaded, in the alternative, that the plaintiffs should be directed to make payment of one half of the amount spent by them and their ancestors on the disputed properties in case it is held that the parties are jointly owned and the plainiffs were also entitled to manage the properties in dispute. The defendants took the plea that the cause of action for filing the suit arose to the plaintiffs in Samvat 2000 and as such the suit was barred by limitation.

4. The trial court by its judgment dated September 30, 1970 held that the land in dispute on which the temples of Pitreshwarji & Hanumanji were constructed were jointly purchased by the ancestors of the parties & the ancestors of the parties jointly made constructions of the two temples & the other structures over the said land. The trial Court also held that the defendants failed to prove that the ancestors of the plaintiffs relinquished their rights, either in the Bagichi, the temples and other immovable properties or the right of management thereof. It was further held the defendants were not entitled to reimbursment of the amount spent by them over and above their shares of expenses, because they failed to pay court fees in respect of such relief. Thus, on almost all issues of fact, the trial court recorded findings in favour of the plaintiffs. It may be observed that broadly speaking there is not much disupte between the parties on the question that the land in question was jointly acquired by the ancestors of the parties, and the temples & structures were also jointly constructed over such land by the ancestors of the parties. However, in respect of issue No. 5, relating to limitation, the trial court held that Section 10 of the Limitation Act bad no application and as she defendants had claimed adverse possession, the suit was barred by limitation.

5. Thus from the pleadings and evidence on record it is undisputed that the piece of land, on which the disputed properties have been constructed, was purchased in the joint names of Bhagawandas and Madangopal, who were the ancestors of the defendants and the plaintiffs respectievly. It is also beyond dispute that the temples of Pitreshwaji & Hanumanji and some other structures were constructed on the said land between Samvat 1978 and 1980 jointly and the ancestors of the parties spent money in equal shares in raising such constructions. According to P.W. 1, Kesandeo plaintiff after purchasing the lands jointly Bhagwandas and Madangopal, the parties, constructed a kund, three temples of Pitreshwarji and Hanumanji and some rooms to be used as guest house, from Samvat year 1978 to 1980, in which the ancestors of both the parties spent money in equal shares. Kesardeo also stated that as the plaintiffs and their ancestors used to reside outside Rajgarh, where the properties in dispute are situated, the defendants & their ancestors used to look after the management of such properties and that until Samvat year 2000, the plaintiffs and defendants shared equally the expenses incurred in the maintenance & up keep of the said properties as also in Puja etc. Then the plaintiffs suggested that the parties should manage the properties by turns extending to a period of one year at a time, but the defendants did not pay any heed to the aforesaid suggestion and they continued to manage the endowment properties, without the consultation or concurrence of the plaintiffs. He also stated that in the year 1962, the plaintiffs at their own expenses, made installed electrict fittings in the Begichi, temples and in the other buildings. Kesar Deo also stated that the entire account of the expenditure incurred, either in the initial construction of the temples and other properties from Samvat year 1978 to 1980 or even thereafter in maintenance and upkeep of such properties was kept by the defendants and their ancestors According to Kesar Dao, in 1960 he asked Hariram as to what they had decided about the management of the Bagichi and then at that time Hari Ram frankly refused and told him that nothing would be done by the defendants in that matter and he was free to persue his own course.

6. Defendant Shankerlal, who appeared as D.W.I stated that the defendants & their ancestors had managed the properties in dispute ever since Samvat 1980 & that the entire expenditure was being incurred since then exclusively by the defendants, real brother of Maliram, who was the ancestors of plaintiff Kesardoe. Thus, Bajrangdas and Maliram were real brothers and they were admittedly the ancestors of the defendants and the plaintiffs respectively and thus the 'Pitreshwar Bhawan' was ancestral property, belonging to the families of the plaintiffs and the defendants, on account of their being the descendants of Maliram and Bajrangdas. Shanberlal also admitted in his cross-examination that 7 or 8 years before his statement was recorded, electric fittings were installed in the disputed properties and the materials in respect of such electric fittings were supplied by Kesardeo, while the defendants got the same installed. Thus even in the year 1962 the parties were dealing with the properties as if they jointly belonged to both the parties. Of course, as stated by Shankerlal the properties in dispute were not considered by the parties as belonging to any individual or even as the personal property of the joint family of the defendants, but they were considered as a religious and charitable trust.

7. On the basis of admitted facts, it is apparent that all the descendants of Bajrangdas and Maliram were entitled to take part in the management of the disputed properties, including the lands and buildings constructed thereon comprised in the 'Pitreshwar Bhawan', as such properties belonged jointly to all the descendents of Bajrangdas and Maliram. The defendants alone had no right to manage the said properties nor they could deprive the plaintiffs of their share in the management of the ancestral properties. The defendants could not, therefore, debar the plaintiffs from taking part in the management of the properties comprised in 'Pitreshwar Bhawan'. It may be observed that the defendants have failed to establish the alleged relinquishment of their rights by the ancestors of the plaintiffs. Neither any document or writing evidencing the alleged relinquishment has been produced nor any oral evidence worth the name, on which reliance could be placed, has been adduced in this respect. Shankerlal himself admitted in his statement that he had no personal knowledge about the alleged relinquishment of their rights by the ancestors of the plaintiffs nor he could disclose the source of his knowledge, but his evidence in this matter is merely based on hearsay. He has not even named the ancestor from whom he heard about the alleged relinquishment. The defendants' other witness, D.W.2 Banwarilal stated that the management of 'Pitreshar Bhawan' was vested in the defendants since Samvat 1980. He also stated that since samvat 1980 neither Kesardeo nor his ancestors ever asked the defendants to allow them to take part in the management nor they ever managed the properties in question. Although Banwarilal stated that near about 1980 it was settled that the management would be vested in the defendants, yet in the cross examination he admitted that be had no personal knowledge about the alleged settlement nor there was anything in writing in respect thereof. Thus, there is total absence of cogent evidence to support the plea raised by the defendants about the relinquishment of their rights of management by the plaintiffs' ancestors.

8. Now, the only question which remains for consideration is as to whether the suit of the plaintiffs for taking part in the management of the properties in question was barred by limitation. Learned Counsel for both the parties agreed that Section 10 of the Limitation Act has no application to the facts of the present case. It is not the case of the plaintiffs that the trust properties were used for some purpose other than of the trust.

9. In Balwant Rao v. Puranmal ILR 6 Allah 1, their lordships of the Privy Council held that where the plaintiffs' suit was to enforce own personal right to manage an endowment, dedicated to religious purpose, there is no question that the properties were applied for some other purpose by the Manager in possession and Section 10 of the Limitation Act was inapplicable. Their Lordships observed as under:

Their Lordships are of opinion that the expression used by the Legislature, 'for the purpose of following in his or their hands such property', means for the purpose of recovering the property for the trusts in question; that when property is used for some purpose other than when proper purpose of the trusts in question, it may be recovered, without any bar of time, from the bands of the persons indicated in the section. But here there is no question of recovering the property for the trusts of the endowment, because the defendant admits that he is a trustee, and says that he is applying the property to the trusts of the endowment. There is no evidence that he is not applying the property to the trusts of the endowment, and there is no reason to conclude that the property would be more applied to those trusts if the plaintiff were to succeed in his suit than it is at this moment. The plaintiff is suing only for his own personal right to manage or in some way to control the management of the endowment. The consequence is that the case does not fall within Section 10 of the Limitation Act. If it does not, then it must be within one of the articles of the schedule.

10. In the present case also the defendant Shankerlal has admitted that he is a trustee and that the property belongs to the religious and charitable trust and is being applied for the same purpose. As the plaintiffs have filed the suit for obtaining a share in the management of the trust properties, Section 10 of the Limitation Act cannot be made applicable and the suit must fall within one of the articles of the schedule to the Limitation Act. Now, it has to be seen as to which article of the Limitation Act would be applicable to the suit. The learned District Judge held that the defendants were in adverse possession of the disputed properties, on the basis of the decision of their Lord-ships of the Privy Council in Arunachatlam Chetty and Ors. v. Venkatachalapathi Guruswamigal AIR 1919 PC 62 and on that ground held that the plaintiffs' suit was barred by limitation. It may, however be observed that the decision in Arunschallam Chetty's case AIR 1919 PC 62 has no application to the present case, as the facts of the case were absolutely distinguishable. In that case, the plaintiff claimed to be the owner of the Mutt property, on the ground that he was the spiritual bead of institution and by virtue of his office he was entitled to the management and possession of the entire Muth property, The suit was brought for seeking a declaration that the defendants had no right to the trust properties and the plaintiff, as the head of the Muth, was entitled to the possession of such property and to receive the income from the same. In Aruna-challum Chetty's case AIR 1919 PC 62, their Lordships of the Privy Council held that where 1 he person claiming to be the sole owner of the Muth properties stands by, while other person continued to possess such properties in utter contravention of the alleged rights of the plaintiff, the possession of such other persons is adverse to the person claiming to be the owner and Article 144 of the Limitation Act of 1908 was made applicable to the suit, which was filed for the recovery of Muth property. But in the present case, the plaintiffs do not claim themselves to be the sole owner of the disputed properties, but their claim is that the properties comprised in the 'Pitreshwar Bhawan' were religious and charitable properties and the trust was owned by the families of both the plaintiffs and the defendants jointly. The plaintiffs have not claimed in the suit that they are entitled to exclusive possession of the disputed properties. They have also not claimed that they were entitled to the management of the properties in dispute to the exclusion of the defendants, but they have claimed management of such properties jointly with the defendants. Thus in the present case, the plaintiffs have not claimed to be the sole owners of the suit properties to the exclusion of defendants, as was the situation in Aruna Challam Chetty's case. It must be observed that the learned District Judge did not properly appreciate the nature of the suit. A bare reading of the plaint would make it clear that the suit was not for recovery of possession over the properties in dispute or for exclusive possession thereof and for the ouster of the defendants; but what the plaintiffs claimed in the present suit is merely joint right of management of the disputed properties along with the defendants and not to their exclusion.

11. It is settled law that if one of the co-owners remains in possession or continues to manage the properties which are jointly owned by the parties then the possession of one of the co owners shall enure to the benefit of all the co-owners and there is no question of adverse possession until there is an ouster of one of the parties. Merely because the defendants continued to manage exclusively the trust properties for a considerably long, it cannot be held that there was an ouster of the plaintiffs, so long as the character of the trust properties is admitted to be jointly owned by the plaintiffs and the defendants. In Charles Edward Victor Seneviraine Cores v. Mahatantrigey Iseris Appuhamy and Anr. AIR 1914 PC 243 it was found that one of the co-heirs of a deceased person got in to possession of the estate and he remained in undisturbed and uninterrupted possession since the date of his entry. Their Lordships of the Privy Council held that merely undisturbed and uninterrupted possession for a long time could not confer an adverse title upon the person in possession, until he has given proof of an independent title and observed as under:

Entering into possession, and having a lawful title to enter he could not divest himself of that title by presenting that he had no title at all. His title must have enured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas v. Thomas (I) holds good : 'Possession is never considered adverse if it can be referred to a lawful title

It was, thus, clearly held by the Judicial Committee of the Privy Council in the aforesaid case that long continued possession, undisturbed and uninterrupted for how so long a period it might be, cannot confer adverse title unless there is a clear ouster or something equivalent to clear ouster of the other co-owners The defendants have failed to prove the alleged relinquisement by the plaintiffs of their right to take part in management of the 'Pitreshwar Bhawan' properties. There is no evidence of the plaintiffs or their ancestors in the present case and there are no circumstances which could justify the existence of such a presumption. In fact, the defendants themselves have admitted in evidence that the plaintiffs or their ancestors neither asked for managing the trust properties nor the management was ever given to them. Even if it be accepted that the defendants ever since Samvat 190, yet no case of ouster of the plaintiffs their ancestors have been made on . The defendants came into possession on the basis of a lawful title, as the co-owners of the said properties and merely because they were in exclusive management for a very long period their possession could not ipso facto be come adverse. If one co-owner is in joint possession, the other coowner could not maintain (3) AIR 1914 PC 243 a suit for ejectment because there must be an ouster of the party complaining for maintaining the suit for ejectment.

12. In Mohammed Bagor and Ors. v. Naimun-Nisa Bibi and Ors. : AIR1956SC548 it was observed that under the law possession of one co-sharer is possession of all co sharers and it was not adverse to them. It is only when there is a denial of title of the plaintiffs to their knowledge and exclusion and ouster following thereafter for the statutory period, which can give rise to an adverse possession.

13. In P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 their Lordships laid down the law in respect of adverse possession by a co-owner, as under:

Now, the ordinary classical requirement of adverse possession is that it should be nee vinec clam nec precario; (See Secretary of State for India v. Debnedra Lal Khan 61 Ind.App.78 at p.82 : AIR. 1934 PC 23 at page 25 The possesion required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni v. Collector of Khulna 27 Ind. App 136 at p 140 (PC) (B). But it is well settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co heir by the co-heir in possession, who claims his possession to be adversee, should be made out. The possession of one coheir is considered, in law, as possession of all the co-heirs When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title (See Cores v. Appuhamy 1912 AC 230 (C). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one coheir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a vary considerable time and the excluded heir takes no steps to vindicate his title.

(Emphasis added).

In the aforesaid case, it was also held that the burden of proving the case of ouster is on the person claiming to displace the lawful title of a co-owner by his adverse possession.

14. Now, it is well settled that adverse possession begins in favour of a person when that person is in actual possession with a notorious hostile claim of exclusive title to repel which the true owner would have to maintain a suit. Thus, it is clear that whatever may be the animus or intention of the person desiring to acquire title by adverse possession yet his adverse possession cannot commence until he obtains actual possession with a notorious hostile claim of exclusive title. cause of action for filing a suit by a co-owner, who is not in possession of the joint property, arises when and only when the other party begins to assert openly a title hostile to the other co-owner. That is the point of commencement of adverse possession, which alone can furnish a cause of action to the rightful co-owner, who is not in possession.

15. In Kandu and Ors. v. Kochi and Ors. 1970 (1) SC Weekly Reporter 610 it was held that evidence of a conclusive character was necessary to show that a co-sharer's right has been lost by ouster. Their Lordships of the Supreme Court observed that it must be established by satisfactory evidence that the plaintiffs had the knowledge of the fact that the defendants were dealing with the property exclusively as their own and in that case the oral evidence on the question of ouster was rejected on the ground that the same was in conclusive in nature, as it was not possible for the witnesses to speak all the circumstances that existed at the time of alleged ouster.

16. In Maharajadhiraj of Burdwan, Udaychand Muhatab Chand v. Subodh Gopal Bose and Ors. : AIR1971SC376 their Lordships of the Supreme Court rejected the contention of the defendant that he had acquired a permanent right in the suit lands, in view of the fact that he was in exclusive possession of the same for a long time. It was observed by their Lordships that once it was held that the defendant was a co-owner of the lands in question, his possession however long it might be, cannot confer any right on him unless it is adverse to the other co-owners.

17. In Shambhu Prasad Singh v. Mst. Phool Kumari and Ors. : AIR1971SC1337 the same principle was reiterated and it was observed that relations between the parties had not yet become unfriendly so as to make a co-sharer suspect that the other co-sharer would treat his possession as adverse. Their lordships of the Supreme Court observed as under in the aforesaid case:

Baijnath, no doubt, was using the whole house, but so long as his possession did not amount to ouster his possession would be that of both the co-sharers. If Baijnath used the entire house, except when Nanhku stayed in it during his occasional visit, Nanhku would naturally think that Baijnath should pay the taxes. It was not the case of the respondents that Baijnath ever demanded a share in the taxes or a share in the cost of the repairs and that such a demand was refused by Nanhku The High Court on these facts was not right in observing that the title of Baijnath was already completed by adverse possession long before Baijnath filed his written statement in 1933, as mere use and enjoyment by him of the house in the absence of such use amounting to ouster, would not make it adverse possession.

18. Applying the aforesaid principles to the facts of the present case, nothing was done by the defendants to assert a hostile title or to indicate to the plaintiffs their ouster from the properties in dispute and merely exclusive possession of the defendants over the disputed properties for a very long time, even since samvat year 1980, would not lead to an inference of adverse possession of the defendants. The plaintiffs' case is that Kesar Deo was residing outside the town of Rajgarh. where the disputed properties were situated, and the defendants continued to manage the trust properties. But there is nothing on the record to show that the defendants ever asserted a hostile title. Shanker Lal has admitted as D. W. 1 that the defendants were looking after even Kesar Deo's own Haveli, Nohra and land situated in Rajgarh, apparently because Kesardeo was residing outside, which shows that the relations between the parties were not unfriendly. If the defendants, who were looking after Kesar Deo's own personal property, also continued to manage the disputed properties, which were jointly owned by the parties, then no inference of ouster or adverse possession or assertion of a hostile title could be drawn. It is admitted by the defendants that the sign-boards Ex. 1 and Ex. 2 were still displaced over the gate of the disputed properties, which indicate that the 'Pitreshwar Bhawan' was jointly constructed by Bajrang Das and Maliram Sureka and was also indicative of the joint ownership of the properties in dispute by the families of the plaintiffs and the defendants. As observed above, there is no document or writing or plansible evidence on record to show either relinquishment by the plaintiffs or their ancestors or the assertion of a hostile by the defendants or by their ancestors. There is no reliable oral evidence to show that there was any ouster of the plaintiffs or of assertion of a hostile title by the defendants P. W. 1 Shankeralal has himself admitted that the plaintiffs still go to worship in the Pitreshwar temples. He has also admitted that the disputed properties were not the personal properties of the defendants but they formed trust properties and the capacity of the defendants was that of trustees. It is also admitted that the temples were constructed by the ancestors of both the parties on the land which was jointly purchased by the ancestors of both the parties. There being no positive evidence either of ouster or of assertion of hostile title by defendants, the properties in dispute are jointly owned by the families of both the plaintiffs and the defendants. There can therefore, be little doubt that both the parties have a joint right of management. Even if one of the parties has been exclusively managing the properties for a long time, they have no right to exclude or debar the other co-owners or deny their right of management if the plaintiffs desire to take part in the management of the properties. As asserted by Kesar Deo, it was only in the year 1960 that the defendant Hari Ram for the first time told him definitely that the defendants would not allow the plaintiffs to lake part in the management of the said properties. The cause of action for filing the suit for joint management obviously arose in the year 1960. As no relief for possession is claimed in the suit, but only joint right of management has been claimed and a declaration to this effect has been prayed for by the plaintiffs, as such the suit would obviously fall under Article 120 of the Limitation Act, 1903, which was in force at the time when the suit was filed. The suit was thus filed within a period of 6 years from the date when the cause of action accrued to the plaintiffs and so it must be held to have been filed within limitation. The decision of the trial court in respect of issue No. 5 is, therefore, set aside.

19. The defendants in their written-statement advanced an alterna-tive claim that in case the court did not agree with the contention of the defendants in respect of their exclusive right of management of the disputed properties then the defendants were entitled to one half of the amount spent by them in connection with the management of the disputed properties and in respect of the constructions made therein. Shankerlal D. W. 1 stated that in all Rs. 28, 800/- were spent by them, out of which Rs. 8 800/- were paid by Madangopal Megh Raj and thus they have spent Rs. 20, 000/- more upto Samvat year 2011. The plaintiffs also stated in the plaint that they were entitled to take part in the management of the trust properties and were also liable to make payment of one half of the expenses incurred over the management of the disputed properties. Plaintiff Kesar Deo as P. W. 1 also expressed his willingness to make payment of one half hare of the expenditure incurred by the defendants. He also stated that the accounts relating to all expenditure incurred over the disputed properties were also with the defendants. Learned Counsel for the appellants also stated before this Court that the appellants are willing to make payment of one half of the amount spent by the defendants. It would also be fair and just that when the plaintiffs are seeking to take part in the management of the disputed properties, which were jointly constructed by. the ancestors of the parties and were jointly owned by them, then the plaintiffs should also bear one-half of the expenses incurred in the management of such properties including the constructions made therein.

20 After looking into the relevant documents produced by the parties and as the plaintiffs have expressed their willingness to make payment of one half of the amount spent by the defendants in course of the management of the joint properties and in the constructions made in the 'Pitreshwar Bhawan'. The defendant Shanker Lal has staled that the defendants have spent Rs. 28, 800/ in the construction work and the management of the pro* parties upto Samvat 2011 and they have spent Rs. 12,000/ on the management of properties in question. Thus, the total amount which appears to have been spent by the defendants over the constructions and the management of the 'Pitreshwar Bhawan' properties appears to be Rs. 40,800/ as stated by Shanker Lal, out of which the plaintiffs were reliable to make payment of one half of the amount i.e. Rs. 20,400. The plaintiffs have admittedly paid Rs. 8,800/ as stated by Shankerlal himself. Thus, the plaintiffs should make payment of the remaining amount of Rs. 11,600/ to the defendants. The learned District Judge has held that the defendants were not entitled to recover any amount as they have not paid any court fee in respect thereof, but he should have determined the amount payable subject to payment of court fees. Thus, on the basis of the admissions of the plaintiffs and the evidence on record the defendants are entitled to obtain a sum of Rs. 11, 600/ from the plaintiffs, subject to payment of court fees.

21. In the result, the appeal is allowed. The judgment and decree passed by the learned Additional District Judge, Churu dated September 30, 1970 is set aside and the plaintiff's suit is decreed and it is declared that the plaintiffs are entitled to the joint management of the disputed properties along with them. The defendants would be entitled to recover a sum of Rs.11, 600/- from the plaintiffs, subject to the payment of court fees. In the circumstances of the case, the parties are left to bear their own costs.


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