GURDEV SINGH Vs. NACHHATTAR SINGH

JUDGEMENT

(1.) GURDEV Singh and his mother Smt. Harnam Kaur, who were defendant Nos. 1 and 2 in the trial Court have filed the present regular second appeal ;uid it has been directed against the judgment and decree dated 7.4.1999 passed by the Court of Additional District Judge, Bathinda, who allowed the appeal of the plaintiffs, namely, Nachhattar Singh Pritam Singh and Daler Singh by setting aside the judgment and decree of the trial Court and the suit of the plaintiffs was decreed and a declaration was granted in their favour that the decree dated 21.7.1993 suffered by Smt. Hamam Kaur (defendant No. 1) in favour of her son Gurdev Singh (defendant No. 1) is void and ineffective qua the rights of the plaintiffs and defendant No. 3 Kattar Singh and all the five brothers, including their mother Smt. Harnam Kaur are in joint possession of the land though the land is still owned by Smt. Harnam Kaur.

(2.) THE brief facts of the case are that plaintiffs namely, Nachhaltar Singh, Prittam Singh, Daler Singh and Gurdev Singh and Kattar Singh (respondent Nos. 1 and 3) are the sons of Smt. Hamam Kaur, who is still alive. The case set up by the plaintiffs in the trial Courts is that Smt. Harnam Kaur was the owner of 1/3rd share of the suit land measuring 378 kahals 9 marlas. She resides with the plaintiffs and they look -after and provide basic necessities to her. It is the case of the plaintiffs that Smt. Hamam Kaur, being spend -thrift, was wasting the income of the property. Due to this, there used to remain a dispute between the parties. In order to settle the dispute, a family settlement took place between the parties on a Lohri day in 1988. The suit land was given to the plaintiffs by the defendants in equal shares. The possession was also delivered to the plaintiffs and they are in continuous possession. The mutation of the suit land could not be changed in the names of the plaintiffs and in the revenue record. Defendant No.2 Smt. Harnarn Kaur is still shown as owner in the revenue record. Taking advantage of these entries and in order to grab the share of the plaintiffs, defendant No. 1 Shri Gurdev Singh fied a suit for declaration against Smt. Harnam Kaur without impleading the plaintiffs and defendant No. 3 Sh. Kattar Singh as a party. He obtained a decree on 21.7.1993 regarding the suit land against Smt. Harnam Kaur. The decree is illegal, null and void inter alia on the ground that the suit land was given to the plaintiffs on the day of Lohri in 1988 in view of the family settlement. Possession was delivered to the plaintiffs. Defendant No. 1 was having the knowledge of the family settlement, therefore, defendant No.2 Smt. Hamam Kaur was not the owner of the suit land after Lohri in 1988. Defendant No. 1 is issueless. No family settlement took place between defendant Nos. 1 and 2. Plaintiff Sh. Nachhattar Singh never appealed in the Court in Civil Suit No. 326 of 1992 and did not suffer any statement. In the statements of Nachhartar Singh and Kattar Singh it was stated that they are four brothers. In fact, they were five brothers. The judgment and decree dated 21.7.1993 obtained by Sh. Gurdev Singh against Smt. Hamam Kaur has been obtained after concealing the material facts. The plaintiffs averred that by way of family settlement allegedly held on the day of Lohri in 1988, the land in dispute had fallen to their share and, therefore, any decree suffered by Smt. Harnam Kaur in favour of her son Sh. Gurdev Singh, is not binding on the rights of the plaintiffs.

(3.) FROM the pleadings of the parties, the trial court framed the following issues: