DAYANAND RAJAN & ANR. Vs. RAM LAL KHATTAR

JUDGEMENT

(1.) These two Regular First Appeals are under Section 100 of the Code of Civil Procedure, 1908 (CPC) filed against the two judgments of the trial court dated 19.8.2017. The impugned judgments dated 19.8.2017 were passed in two connected suits. RFA No. 1065/2017 pertains to a suit for possession, damages etc filed by the respondent/Sh. Ram Lal Khattar against the appellant no.1/defendant no.1 with respect to two rooms in the property bearing no.F-82, East of Kailash, New Delhi. RFA No. 1064/2017 pertains to a suit filed by the appellant no.1/Sh. Dayanand Rajan seeking partition of the property bearing no.F-82, East of Kailash, New Delhi. Parties to both the suits are the children and legal heirs of late Sh. Khan Chand. Suit for possession which has been decreed by the impugned judgment dated 19.8.2017 is the suit filed by the respondent/Sh. Ram Lal Khattar and in which suit there were three defendants namely Sh. Dayanand Rajan, Smt. Sohan Devi (since deceased) and Sh. Shyam Lal. The plaintiff in this suit Sh. Ram Lal Khattar, the defendant no.1 and the defendant no.3 were real brothers. Smt. Sohan Devi being the wife of late Sh. Khan Chand is the mother of the parties. Defendant nos. 2 and 3 in the suit filed by Sh. Ram Lal Khattar, namely one brother Sh. Shyam Lal/defendant no.3 and mother Smt. Sohan Devi/defendant no.2 were proforma defendants inasmuch as the relief of possession and damages etc was claimed by the respondent/Sh. Ram Lal Khattar only against the appellant no.1/Sh. Dayanand Rajan. So far as RFA No. 1064/2017 is concerned, the same pertains to a suit for partition with respect to property F-82 as stated above and in which suit there were three defendants with Smt. Sohan Devi being the defendant no.1 and Sh. Ram Lal Khattar and Sh. Shyam Lal being defendant no.2 and 3.

(2.) For the sake of convenience, reference is made to the facts of RFA No. 1064/2017 and which pertains to the suit for partition filed by the appellant no.1/Sh. Dayanand Rajan.

(3.) Subject suit for partition with respect to the property F- 82, by pleading that the suit property was purchased by the appellant no.1/plaintiff along with the defendants in the suit in the year 1976 but the suit property was purchased in the name of Sh. Ram Lal/defendant no.2/respondent as Sh. Ram Lal was the eldest male member of the family. It was pleaded that there was an HUF existing and that on the death of the father Sh. Khan Chand in 1970, the HUF comprises of the sons of late Sh. Khan Chand and their mother. It was pleaded that defendant no.2 in the suit Sh. Ram Lal/respondent being the eldest brother became the karta on the death of the father. It was pleaded that the suit property was purchased with the HUF funds but in the name of the respondent/Sh. Ram Lal since he was the eldest member of the family. Plaint thereafter refers to various other properties and their different ownerships with which we are not concerned. It was also pleaded by the appellant no.1/plaintiff that he had contributed towards construction made on the suit property. Therefore, the suit was filed by the appellant no.1/plaintiff pleading existence of an HUF and the suit property being HUF property which had not been partitioned and therefore should be partitioned in terms of the prayer clauses made in the plaint.