SUKHBIR SINGH Vs. JAGDISH PRASAD

JUDGEMENT

(1.) This order shall dispose of two applications moved by the plaintiff i.e. IA. No.9137/98 (under Order 39 Rules 1 & 2 Criminal Procedure Code) and IA. No.2747/2000 (under Section 151 Criminal Procedure Code).

(2.) A brief resume of the facts is necessary. The plaintiff and the defendant are real brothers. The plaintiff has filed the present suit for declaration, possession, rendition of accounts and perpetual injunction against his real brother with regard to property bearing municipal NO. WZ-1228A and 1230 to 1233. Nangal Rai, New Delhi, which was owned by their father Shri Bhagwan Singh. Shri Bhagwan Singh died on 1/06/1981. The plaintiff has set up a 'Will' dated 8/11/1977 of his father Shri Bhagwan Singh bequeathing his moveable and immoveable properties to his two sons i.e. the plaintiff and the defendant. Further reliance has been placed on a family settlement dated 5/10/1986 by which the plaintiff and defendant divided the property in question by metes, and bounds. The share of the plaintiff comprised of four shops, four rooms, open courtyard and a tin shed shown RED in the site plan Annexure 'A' to the plaint. Rest of the portion shown GREEN in the plan fell to the share of the defendant. According to the family settlement, the defendant had agreed to provide 5 ft. passage as shown from point 'A' to 'C' and 'B' to 'D' in the site plan from his share so as to provide access to the plaintiff's portion of the property. The plaintiffs further case is that the family settlement was acted upon and given effect to. The defendant paid a sum of Rs. 19,000.00 on 14/09/1987 as agreed in the settlement after the sale of agricultural land situated in Village Ram Nagar, Tehsil Baghpat, District Meerut (U.P.). The defendant wrote various letters for mutation of the property in the joint name of the plaintiff and the defendant as, earlier, it was in their father's name. Electricity connection was also sought to be changed to plaintiff's name. Plaintiff started collecting rent from the tenants occupying portion of the his share after the family settlement. He could not visit the premises in dispute after the end of 1989 on account of his illness. He visited the premises in the beginning of the year 1995 and found that the defendant raised construction in the vacant portion of his share of the property and had been collecting rent from his tenants. Despite the agreement/settlement defendant did not leave 5 ft. passage in his share to provide access to plaintiffs portion.

(3.) The defendant has denied the execution of the 'Will' dated 8/11/1977. He has set up another 'Will' of his father dated 2/05/1981 and a subsequent family settlement dated 10/12/1986. As regards the family settlement dated 5/10/1986 set up by the plaintiff, the execution of the same is not denied. His case is that the family settlement dated 5/10/1986 related to partial partition of the property and as such it was not acted upon and another settlement dated 10/12/1986 was arrived at. According to the defendant as per the 'Will' dated 2/05/1981 allegedly executed by his father, the property situated at Khatauli fell to the share of the plaintiff and the property in Nangal Rai Subject matter of the suit, fell to the share of the defendant and the property situated in Village Ram Nagar, Tehsil Baghpat, District Meerut (U.P.) had been divided in equal shares between the plaintiff and the defendant. As regards the rent of the shops and rooms in the suit property, according to the settlement dated 10/05/1986, plaintiff Shri Sukhbir Singh was to collect the rent from 1/12/1986 to 31/12/1989 and this concession was given to him as he had to marry his daughter.