ORDER The following Order of the Court was delivered:
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1190 OF 1977 SHYAM LAL (DEAD) BY L.Rs. & ORS. ...APPELLANTS
O R D E R
This appeal arises by Special Leave from the Judgment of the High Court of Allahabad in Second Appeal No.977/72 dated April, 2, 1975. Kesho Lal, respondent No.1, is represented by legal representatives of the appellants. He was allotted in 1948 a site by the Allahabad Improvement Trust in plot No.184 of G.Toula. Thereon, a building was constructed. Kesho Lal filed Suit No.69/58 for declaration that he was a sole owner of the said house and for possession from the respondents brother, Shyam Lal and his mother. Ultimately, in those proceedings the High Court by judgment and decree dated May 11, 1966 held thus:
"The direction given by the trail
court is open to several objections.
That direction is in the nature of
partition of the house. Neither the
plaintiff nor the defendants applied to
the court for partition of the house.
The line X Y appears to have been drawn
on the map arbitrarily. The specific
shares of the parties were not
discussed. It is not stated in the
judgment that division of the house is
in proportion to the shares of the
parties in the joint property. It has
been found that the house was built from
joint family fund. Parties have been in
occupation of different portions of the
house. They should have been left in
possession of those portion. If any
party is left in possession of those
portion. If any party is anxious for a
division of the house, that party must
file a separate suit for partition. For
the present, the parties should be left
to have joint possession of the house
belonging to the family. The direction
in question should be struck off from
the decree. The appeal partly succeeds,
while the cross objection fails."
Thereafter, Kesho Lal filed the suit for partition in the First Additional Munsiff Court at Allahabad. The trial court decreed the suit and on appeal in CA No.409/70, the appellate court allowed the damages for a sum of Rs.6,00/but dismissed the suit regarding recovery of possession and removal of the material. The High Court in the impugned judgment held that the construction at A, B, C, D and E, F, G, H were made subsequent to the judgment rendered by the High Court in earlier proceedings. Accordingly, granted the decree in favour of the plaintiff-respondents. Thus, this appeal by Special Leave.
Shri Francis, learned counsel for the appellant contended that the finding recorded by the High Court that the construction at A, B, C, D and E, F, G, H places are subsequent to the judgment is not correct. It being a finding of fact based on appreciation evidence by all the courts, we do not find that it is a case for our interference. The appeal is accordingly dismissed, but without costs.
It is suggested by Shri Francis that since the appellants are in possession necessary adjustments may be thought out by the parties. This order of ours does not preclude such adjustment as thought desirable by all, which avoid needless litigation.