Posted On by &filed under Allahabad High Court, High Court.


Allahabad High Court
Thakuri vs Kundan And Anr. on 19 February, 1895
Equivalent citations: (1895) ILR 17 All 280
Author: Aikman
Bench: Aikman


JUDGMENT

Aikman, J.

1. Musammat Thakuri, the appellant in this case, brought a suit for possession of one-half of a dwelling-house. Her case was that the house had been jointly built by her husband Chajju and his uncle Khushi; that after Chajju’s death, which took place some 18 or 19 years ago, Khushi’s son, Murli, mortgaged the whole of the house to one Chiranji Lal. Chiranji Lal got a decree on his mortgage, in execution of which the house was brought to sale and purchased by the defendants Kundan and Chota, the respondents before me. The Court of First Instance (the Munsif of Muzaffarnagar) gave the plaintiff a decree, which was reversed on appeal by the learned District Judge of Saharanpur. The learned Judge was of opinion that Section 41 of the Transfer of Property Act applied to the case and referred to the Munsif for trial two issues based on the terms of that section. The finding of the Munsif was in favour of the respondent. In second appeal it is urged that as Section 41 of the Transfer of Property Act was not expressly pleaded, the learned Judge had no power to take it into consideration in disposing of the case; I cannot accede to this contention. The respondents were, prime facie, bond fide purchasers for value; and where a Court sees that the rights of one of two innocent parties must be sacrificed, it is entitled to consider whether anything, in the conduct of the party who comes into Court and seeks relief has debarred him from asserting his right. Here it is found that for a long term of years. no ostensible act of ownership was exercised by the plaintiff over the house, but that, on the contrary, she allowed her husband’s cousin to appear and deal with the house as ostensible owner, and that in consequence of his conduct the respondents have been induced to purchase I observe that plaintiff allowed upwards of four years to elapse from the date of the auction-sale before she took any step to assert her right, and in doing so, although she has made her husband’s cousin a defendant to the suit, she has not asked for any relief against him. I think, under the circumstances stated above, the learned Judge was right in dismissing the suit. I dismiss the appeal with costs.


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