DHARAMBIR Vs. CHET RAM

JUDGEMENT

(1.) This is second appeal by legal representatives of Mehtab Singh defendant since deceased.

(2.) Chet Ram respondent filed suit alleging that he is owner in possession of the suit plot measuring 3 marlas shown by letters ABCD in the site plan being part of khasra No. 353 measuring 1 kanal 9 marlas. Rampat previous owner thereof gifted the same being 10/96 share of Khasra No. 353 to the plaintiff vide registered gift deed dated 18.7.1990. The suit plot came to the share of the plaintiff in mutual partition with other share holders. The plaintiff remained in possession of the suit plot since the date of gift deed till 31.12.1997. However, the defendant in January, 1998 unauthorisedly encroached upon the suit plot by constructing wall on southern side and has opened a gate therein. Accordingly, the plaintiff claimed relief of possession of the suit plot.

(3.) The defendant, interalia, pleaded that plaintiff is not owner of the suit plot nor it is part of khasra No. 353. The plaintiff never became owner of the suit plot through registered gift deed nor ever came in possession thereof. The defendant is in possession of the suit plot since 21.5.1968 having purchased it from previous owner Rampat for Rs. 800/- but later on Rampat avoided execution of registered sale deed. However, possession of the plot was given to defendant on 21.5.1968 and he continues to be in possession thereof since then. Alleged registered gift deed dated 18.7.1990 is fraudulent. Rampat had no right to execute the same. The suit is also barred by Order 2 Rule 2 of the Code of Civil Procedure ( in short, CPC) on account of dismissal of previous suit filed by the plaintiff.