NAHAL SINGH Vs. CHANDARI DEVI

JUDGEMENT

(1.) This appeal is directed against the order of an Additional District Judge dated 3/8/1992 by which he has dismissed the application of the appellants filed under Order 39 Rule 1 and 2 Code of Civil Procedure.

(2.) Briefly stared, the facts are that the appellants filed a civil suit against the respondents for partition of plot of 500 sq.yard situated in khasra No.32 in village Basant Nagar, New Delhi shown in red colour in the site plan annexed to the petition by meets and bounds. The allegations in the plaint were that Ram Phal, father of appellant no.1 and grand-father of appellants nos.2 to 5 was resident of village Basant Nagar, Mehrauli. He owned several properties including the suit property. He died leaving the appellants and the respondents as his legal heirs. Ram Phal had five sons as mentioned in the pedegree given in para-1 of the plaint and each of the son owned 1/5th share in his property. Appellant no.1, as such, had 1/5 share and appellant nos.2 to 5 had 1/5th share in the suit property. The respondents have raised construction on a portion of the suit property forcibly.

(3.) Respondents 1, 2, 5, 6 and 9 filed a joint written statement. They, inter alia, pleaded that all the sons of Ram Phal had separated during the life-time of their father. Ram Phal died more than 50 years back. All his sons possessed separate properties. Plaintiff no.1 is also possessing a plot adjoining to the disputed land and has constructed a house thereon. He had not disclosed as to from where he got that property. The plaintiffs filed a civil suit for permanent injunction against these respondents which was dismissed by Subordinate Judge by order dated 1.4.1989 and the appeal against the order also failed. The suit was also held to be bad For partial eviction and non-joinder of three daughters of late Madan Lal as one of the sons of Ram Phal It was denied that Ram Phal was owner of khasra No.32 and it was stated that he was only a co-sharer in it. The plot in suit was owned and possessed by his brother Girwar who died about nine years back. He had gifted this land and also his share in the shamlat deh in the year 1955 for which mutation No.275 was sanctioned in the Revenue record in favour of Khayan Singh, predecessor-in-interest of respondents 1 and 2. Khazan Singh died in June, 1984. Khazan Singh thus became the owner and was in possession of the suit land and he remained in possession of it till his death. He also had a house adjoining to the suit land across the passage. Respondents 1 and 2 were using the plot for tethering their catties and as a storage space. The suit plot is in exclusive possession of respondents 1 and 2 and their predecessor without any claim or right from the appellants or any other heir of Ram Phal and if in case the appellants had any right in it, that stood extinguished by adverse possession.