MITHU RAM Vs. SHIV NATH

JUDGEMENT

(1.) Plaintiff Mithu Ram having failed in both the courts below has filed the instant second appeal.

(2.) Plaintiff-Appellant and Defendant - Shiv Nath are real brothers. Case of the Plaintiff-Appellant is that he purchased land measuring 71 kanals 4 marlas in open auction out of unallotted evacuee property. Mutation in this regard was sanctioned in Plaintiff's favour on 16.3.1974. Defendant had no source of income. The Plaintiff treated the Defendant as father figure. On Defendant's request, the Plaintiff agreed to lease out 35 kanals 12 marlas of land (half share) to the Defendant for 18 years. The Defendant regularly paid lease money to the Plaintiff. On expiry of lease period, the Plaintiff demanded back possession of the suit land measuring 35 kanals 12 marlas. However, the Defendant started claiming ownership thereon on the basis of consent decree dated 12.4.1985 passed in civil suit No. 353 of 1985, titled Shiv Nath v. Mithu Ram, Mutation No, 4079 had already been sanctioned in favour of Defendant on the basis of the said decree. The Plaintiff in the suit challenged the aforesaid decree dated 12.4.1985 alleging that the Defendant had no antecedent rights in the suit land and the parties did not constitute Joint Hindu Family. The suit land was purchased by Plaintiff exclusively and Defendant could not claim right therein on the basis of family settlement. The Plaintiff also sought possession of the suit land.

(3.) The Defendant controverted the plaint allegations. The Defendant pleaded that suit land was purchased by both brothers and Defendant had been contributing his half share at the time of payment of installments of the price thereof. However, Plaintiff by fraud got it allotted exclusively in his own name. The Defendant on coming to know of the same stake claim over his half share in the total land and thereupon impugned consent decree dated 12.4.1985 was passed. The said decree was suffered voluntarily by the Plaintiff herein. No fraud was played on the Plaintiff herein. It was denied that the suit land was leased out to the Defendant by the Plaintiff. It was also denied that Defendant ever paid any lease money to the Plaintiff. On the contrary, the Plaintiff out of his share sold 4 kanals land to Bhagwant Singh vide sale deed dated 13.6.1991 and sold the remaining 31 kanals 12 marlas land of his share to Fateh Chand etc. vide sale deed dated 16.4.1996. Now the Plaintiff is left with no share in the total land. Various other pleas were also raised.