Judgment

BEG, C.J.I. :- 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 2/3rd of House No. 397 in Katra, Allahabad. The plaintiff claimed to be the sole heir of the auction purchaser of the house in October, 1937, at a Court sale in execution of a mortgage decree. The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand, Kripa Shankar, now 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 not binding upon him for want of legal necessity. Shital Prasad, a son of Kalyan Chand, was not a party to the mortgagee deed. Hence, Shital Prasads share could not be said to have been sold. On 12th September, 1938, symbolical possession was taken by the auction purchaser, and, again in 1946, in proceedings for execution of a decree. But, the house continued to be in the occupation of Kripa Shanker the husband of the appellant Raj Rani and the father of the appellant Kali Charan. 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 1/3rd share went out, had not been impleaded in the suit now before us. In 1945, the respondent-auction purchaser (now represented by Respondent No. 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. 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 now before us was also in possession of Kripa Shanker as a trespasser. Kripa Shanker died in 1953 leaving the appellants in possession as his heirs.

2. The suit now before us was filed on 10th August, 1959. It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt. Devika Rani, the widow of Shital Prasad having continued in possession over 1/3 share, her claim to that portion had been accepted so that it was no longer in dispute. But, it was alleged that the auction purchaser has been in possession over 2/3 part of the house together with Devika Rani who had 1/3rd share in the house. It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defendant No. 3, had started giving himself out as the owner of 1/3 share on the basis of a gift-deed of 1953 in his favour, and that, defendant No. 1, Raj Rani, had been giving out that Sankata Prasad had executed a sale-deed in favour of Kripa Shanker, defendant No. 2. In para 8 of the plaint however, it is alleged: "The defendants had no concern with the 2/3 share in the said house themselves or through any other person nor were they ever in possession or in occupation of any part of the above said house as owners." It is also alleged in the plaint that the plaintiff auction purchasers son had been, and, before him, the auction-purchaser had been in possession of the house. Furthermore, it is alleged that Raj Rani had, in collusion with Sankata Prasad, defendant No. 3, obtained a false sale deed in favour of defendant No. 2 in respect of the 1/3 share of the said house and misled some tenants in the said house and illegally prevented them from paying to the plaintiff his share in the rent." The plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defen