JUDGMENT

Y.K. Sabharwal, J.-The appellant and respondent No. 4 are brothers. Respondent Nos. 2 and 3 are also brothers. Respondent No. 1 is the son of respondent No. 2.

2. Respondent No. 4 came in possession of the property under rent note dated 24th December, 1968 executed in favour of respondent No. 1. His eviction was sought by respondent No. 1 on the ground of non-payment of rent and sub-letting. The eviction petition was filed some time in the year 1970. In answer to the eviction petition, the case set-up by respondent No. 4 was that there was no relationship of landlord and tenant between the parties and that had entered into an agreement with the vendors for the purchase of the property. The said agreement was brought about in the name of his elder brother because the family was joint. Respondents 2 and 3 had agreed to advance to him Rs. 15,000/- which was the balance amount payable to the vendors. By way of security they insisted that the conveyance deed should be in the name of respondent No. 1 and to cover the interest on the loan amount of Rs. 15,000/-, Rent note dated 24th December, 1968 was executed. In fact there was no relationship of landlord and tenant between the parties. An order of eviction was passed in favour of respondent No. 1 and against respondent No. 4. The case set up by respondent No. 4 was not believed. Respondent No. 4 also failed in appeal and further in the revision petition preferred by him before the High Court. Thus eviction order in respect of the property in question became final against respondent No. 4 and in favour of respondent No. 1. The execution was pending. At about this stage, the suit, out of which this appeal has arisen, was filed by the elder brother of respondent No. 4.

3. In this suit, a decree for declaration was sought that the appellant is the owner of the property and respondents 1 to 3 are entitled only to Rs. 15,000/- with interest. Further a decree for injunction was also sought restraining respondents 1 to 3 from disturbing his possession. The younger brother (respondent No. 4) was impleaded as defendant No. 4 in the suit. The case set up in the plaint was that an agreement dated 11th January, 1968 was entered into between the appellant and vendors for sale of property in question for a consideration of Rs.19001/-; earnest amount of Rs. 2,000/- paid and the sale deed was to be executed within six months. On 10th July, 1968 vendors took Rs. 1,000/- from the appellant and extended the time for execution of sale deed upto 9th September, 1968. The time was further extended on payment of another sum of Rs.1,000/- and that a public notice had given by the appellant. It was published in "Vishala Maharashtra" on 10th September, 1968. The appellant was unable to arrange the balance amount of Rs.15,000/-. Respondent Nos. 2 and 3 agreed to advance him the said sum but they asked for sale deed in favour of respondent No. 1. The sale deed is said to have been executed in the name of respondent No. 1 only to operate as security for the amount of Rs. 15,000/- advanced by respondents 2 and 3. Substantially, the case of the appellant in regard to purchase of property was the same as was the case set up by his brother in the eviction petition except that in the said proceedings brother claimed ownership and in this suit elder brother claimed ownership.

4. In the written statement respondents 1 to 3 took the plea that the suit was got filed by respondent No. 4, with a view to delay the execution of decree and delivery of possession. They said that the appellant has never been in possession of the suit property. The averments in regard to purchase of the property as made in the plaint were denied. It was further pleaded that if the appellant was correct there was no reason for him to remain quiet from 1968 up to the filing of the suit. The same plea was taken by the brother in the eviction proceedings and having failed, suit in question was filed. The revision petition filed by respondent N