RAM KANWAR Vs. RAJ KUMAR

JUDGEMENT

(1.) BY this order I will dispose of two appeals i.e. R.S.A. No. 1394 of 1992 titled Ram Kanwar Versus Raj Kumar and others and R.S.A. No. 956 of 1992 titled Raj Kumar etc. Versus Ram Kanwar and others, as both these appeals have arisen from the judgment and decree dated 29.1.1992 passed by the Court of learned Additional District Judge, Rohtak, who reversed the finding of the trial Court on issues No. 1, 3 and 6 of the suit filed by Shri Ram Kanwar and dismissed the suit in toto.

(2.) THE pleadings of the parties can be summarised in the following manner : Manohar Lal had three sons namely, Shiv Kumar, Raj Kumar (Defendant No. 1) and Ram Kanwar (plaintiff) and two daughters Smt. Ram Piari (defendant No. 9) and Smt. Kalawati. Ram Kanwar has a son by the name of Shri Jai Bhagwan who is defendant No. 5 in the trial Court. Defendants No. 2, 3 and 4 namely, Sarbati Devi, Kiran Bala and Anju Bala are the widow and daughters of Shri Shiv Kumar, Shri Bharat Krishan and Jai Kishan defendants No. 10 and 11 are the children of Smt. Kalwati. The suit was instituted by Shri Ram Kanwar for joint possession of the land described in the head-note of the plaint alleging that deceased Manohar Lal was the ancestor of the plaintiff Ram Kanwar and Shiv Kumar and Raj Kumar defendants and he was the owner in possession of the land in question. The land was allotted to Shri Manohar Lal during the settlement in village Badli. Shri Manohar Lal sold away the land mentioned in para No. 5 of the plaint measuring 18 kanals 12 marlas during his life time. It was also alleged that defendant No. 1 Raj Kumar and Shri Shiv Kumar alias Shiv Lal (husband of defendant No. 2 and father of defendants No. 3 and 4) filed a civil Suit No. 162/74 titled Shiv Kumar etc. v. Manohar Lal and got a consent decree in respect of the land measuring 59 kanals and 1 marla. It was also averred that plaintiff filed a civil suit against defendant No. 1 Shri Raj Kumar, Shiv Kumar and deceased Manohar Lal bearing No. 93/76 titled Ram Kanwar v. Shiv Kumar etc. challenging consent decree dated 18.5.1974 passed in Civil Suit No. 162/74 which was dismissed by the trial Court. However, the decree dated 18.5.1974 was set aside by the first appellate court vide judgment and decree dated 8.8.1978. It was also the case set up by the plaintiff that Shri Manohar Lal executed a Will regarding his property on 5.12.1975 in favour of Shri Jai Bhagwan defendant No. 5 and the plaintiff is not bound by that Will. Shri Manohar Lal has already expired on 16.8.1977 and after his death the plaintiff is entitled to 1/3rd of his property according to Hindu Succession Act. Various mortgage deeds and sale deed executed by defendant No. 1 and Shiv Kumar in favour of defendants No. 6 to 8 are illegal, void and not binding on the rights or the plaintiff. The plaintiff asked the defendants to admit his share to the extent of 1/3rd and hand over the possession to him but to no effect. Hence the suit.

(3.) NOTICE of the suit was given to the defendants. A joint written statement was filed on behalf of defendants No. 2 to 4 namely Sarbati Devi, Kiran Bala and Anju Bala and they admitted the claim of the plaintiff. However, in the written statement filed on behalf of defendants No. 1 and 6 to 8, the ancestral nature of the suit property was denied. It was also submitted that deceased Manohar Lal was not the owner of any land mentioned in para Nos. 2 and 3 of the plaint. It was pleaded that defendant No. 1 Shri Raj Kumar and Shiv Kumar, predecessor of defendants No. 2 to 4, were the owners of 2/3rd share. It has been further submitted that land mentioned in para No. 3 of the written statement was given by Manohar Lal in a private partition in the year 1973 and after the said partition, a partition note was executed on 15.5.1973. The said partition was effected to resolve a dispute between the parties by way of a family settlement and this partition and family settlement was given effect to in a suit which was decreed and plaintiff was given 1/3rd share. The validity of the Will in favour of defendant No. 5 has been challenged and it was further submitted by these defendants that deceased Manohar Lal was not the owner of any of the property at the time of his death and, therefore, no question of succession arises and the plaintiff is the only owner of the land which fell to his share at the time of family settlement to resolve the family dispute which ultimately was recognised by the decree. It was further submitted that the plaintiff is bound by the various mortgages and sale effected by Shri Raj Kumar, defendant No. 1 and Shiv Kumar. It was also pleaded that father could effect partition in accordance with custom prevailing in the District as parties were agriculturists and follow custom in the matters of partition.