Judgment

KOSHAL, J.:- This is an appeal by special leave against a judgment of a learned single Judge of the High Court of Allahabad dated 19th February, 1970 reversing in a second appeal the first appellate decree passed on lst June, 1966 by the District Judge, Rae Bareli in confirmation of the decree of the trial Court. The prayer made by the plaintiffs in the suit, which was dismissed by the first two Courts, was to the effect that a sale deed executed on 14th February, 1964 (Exhibit A-1) by defendant No. 2 in favour of defendant No. 1 in respect of a portion of a block of houses situated in Rae Bareli, be cancelled, and that possession of that portion be delivered to the plaintiffs who should also be awarded mesne profit while accepting the second appeal the High Court decreed the suit except in regard to mesne profits.

2. Most of the facts giving rise to this appeal are undisputed and may be briefly stated with reference to the following pedigree-table :

In the years 1916 and 1918 Sheo Dularey Misra (S. D. Misra for short) who was a leading lawyer at Rae Bareli purchased a block of houses in that town by means of two sale deeds (Exhibits 2 and 3), both executed by one Shambhu Dayal. In the year 1931 S. D. Misra filed a suit against his father and brothers for a declaration that he was the absolute owner of the Rae Bareli houses above mentioned as also of 4 annas and 9 pies share in proprietary Zamindari situated in Mohal Badri Prasad of Village Tera Baraula in Pargana and district Rae Bareli. On the 29th August 1931 a decree based on a compromise (Exhibit 5) was passed in that suit to the effect that S. D. Misra was the exclusive owner of the Rae Bareli houses and also of a half of the said 4 annas and 9 pies share in the Zamindari

On the death of S. D. Misra in 1951, his entire property was mutated in the name of defendant No. 2, both in the revenue records as well as in the registers maintained by the Rae Bareli Municipal Committee. From then onwards till the date of the disputed sale deed (Exhibit A-1) defendant No. 2 was in possession of the entire property left by his father and also acted as its exclusive manager. He received compensation for some of the Zamindari property, a part of which was also sold by him on the 12th. Jan., 1959 to one Imam Ali for a consideration of Rs. 800 (vide Exhibit A-19). In the years 1960 and 1961 defendant No. 2 constructed a one-storey building on a plot of land in Khurshid Bagh. Lucknow, where he was employed as a clerk in the Department of Health of the Government of Uttar Pradesh and where he was residing with his wife and children.

The disputed sale deed (Exhibit A-1) was executed by defendant No. 2 on the 14th Feb., 1964 in respect of the western portion of the said block of houses for Rs. 6.500 in favour of K. C., Kapoor, defendant No. 1 who is the sole appellant before us. in that sale deed defendant No. 2 described himself as "exclusive and complete owner" of the Rae Bareli property and claimed that he was "in possession and occupation thereof with powers of transfer of all kinds .............." The necessity for the sale was thus described by him:

"I am constructing a house in Mohalla Khurshed Bagh, City Lucknow, the lower portion whereof has already been constructed and for the construction of the upper portion whereof funds are required."

3. This litigation started on the 17th September 1964 with the institution of a suit by the three plaintiffs. It was claimed therein that on the death of S. D. Misra, plaintiff No. 1 succeeded to a half share in his property, being his widow, while the other half was inherited by defendant No. 2 so, however, that his sons (plaintiffs Nos. 2 and 3) had an interest therein by birth. In other words, while half of the property left by S. D. Misra was claimed to belong exclusively to Radhika Devi, plaintiff No. 1, in respect of the other half the assertion was that it belonged to a coparcenary consisting of defendant No. 2 and his two sons. The relie