AJMER SINGH Vs. PUNJAB SINGH

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree dated 18.1.1988 passed by the Additional District Judge, Kurukshetra, by which the appeal of the defendants-appellants was dismissed and the judgment and decree passed by the trial Court on 7.2.1986 was upheld, whereby the trial court had decreed the suit of the plaintiff-respondent.

(2.) Briefly stated, the case of the plaintiff-respondent is : Defendant- appellant No. 1 is his real brother whereas defendants-appellants Nos. 2 and 3 are the sons of his brother, defendant-appellant No. 1. He has been practising at Karnal since 1940. He constructed a model house popularly known as Punjab Singh Wali kothi in his native village at the cost of rupees thirty/forty thousand out of his professional income, in the year 1952. He continued to be in possession of this kothi for a sufficient long time. A few years back, by mutual arrangement, the entire ancestral property, belonging to the family, was given to his brothers. He, out of love and affection, did not insist for his own share. After making this family partition of the property, a Memorandum of Partition was drawn up, which was signed by the memebrs and the possession of their allotted shares was also exchanged by the members. The defendants-appellants were experiencing difficulty due to shortage of accommodation for living and they requested the plaintiff-respondent to allow them to use some portion of the kothi on the ground that they would vacate it after constructing their own houses. He conceded to their request and permitted them to use the portion (shown in red colour) as licensees and the licence was to be revoked by him at his Will. The relation between the parties continued to be cordial but, in the year 1974, some differences cropped up over the land measuring 75 kanals belonging to the plaintiff's son Raj Mohinder. This led to civil litigation between the plaintiff's son and the defendants in Civil Suit No. 225 of 1976. This suit was tried by Shri S.D. Anand, Sub Judge, and by the intervention of friends and the Advocates, a compromise was arrived at between the parties. One of the conditions of the compromise was that the defendants would vacate and surrender the possession of the kothi except one room and half verandah on the western side, which shall also be vacated after the completion of their own house which was under construction at that time. The parties to Civil Suit No. 225 of 1976 made a statement in the Court and it was particularly admitted by defendant-appellant No. 2, who was defending the case on behalf of the defendants and their counsel Shri Gurmej Singh, that the portion of kothi, viz. one room, kitchen and half verandah (shown in red colour in the site plan) which was occupied by them, had been vacated and that the possession thereof had been taken by the plaintiff before 28.2.1979. The plaintiff, on getting possession, locked that portion. In the aforesaid Compromise (in Civil Suit No. 225 of 1976) between the plaintiff's son and the defendants, were given 16 Kanals of land out of the land towards Gohar coming from village Landi to the suit land and the rest of the land was given to the plaintiff's son. It was further agreed that 16 kanals of land will revert to the plaintiff's son when the plaintiff, who owned agricultural land, gives 16 Kanals of land and the tubewell installed by the plaintiff at his own cost to irrigate his ancestral land when the defendants Nos. 2 and 3 file a suit in that regard. Some time after the aforesaid compromise in Civil Suit No. 225 of 1976, the defendants expressed their desire to get land at the tubewell of the plaintiff in exchange of their land near G.T. Road in the area of village Landi. The plaintiff showed reluctance to exchange the remaining land with the defendants land touching the G.T. Road. The refusal of the plaintiff to exchange his tubewell irrigated land with the barani land., again made the relations strained between the parties. In this situation on 9.7.1979 the defendants committed criminal trespass by breaking open the locks in order to force their entry in the portion vacated by them. The plaintiff's son Raj Mohinder tried to foil their atempt but failed. The plaintiff filed a criminal case against the defendants under Sections 452/506/342, Indian Penal Code, at Police, Station, Shahbad, which was still pending. The defendants are now in illegal and unauthorized possession of a portion of the Kothi, obtained by them by force along with other portion which was given to them as licensees in the year 1974. The defendants did not surrender the possession despite the request made by the plaintiff. Therefore, the present suit was filed by the plaintiff.

(3.) Defendants-appellants Nos. 1 and 3 filed a written statement stating therein that the entire Kothi was owned by the plaintiff, defendant-appellant No. 1 and their brothers as it was constructed with the joint agricultural income; that it was known as Punjab Singh Wali Kothi, as the plaintiff, being an educated person and in occupation of a portion of the kothi, had become popular among the public, being an Advocate; that, otherwise, he had a meagre income from his practice; that defendant-appellant No 1 and his other two brothers, namely, Partap Singh and Joginder Singh, continued to be in possession of the Kothi, in dispute; that in the year 1974, the plaintiff forcibly dispossessed Partap Singh, one of his brothers, from the portion of the Kothi in question that Joginder Singh, another brother of the plaintiff, shifted to his own house and so he also relinquished possession of some portion of the kothi, that the defendants, however, continued to remain in possession as owners in their own right and they never surrendered-any portion at any time and the question of occupying some portion as licensees and some portion as trespassers did not arise; that the alleged compromise arrived at in Civil Suit No. 225 of 1976 was misconceived and was not maintainable and the judgment and decree passed in that suit on the basis of the alleged compromise was illegal and void; and that another compromise allegedly arrived at between the parties in the Court of Shri N.K. Jain, Chief Judicial Magistrate Karnal, was also illegal and not binding upon the defendants. It was also pleaded that the suit of the plaintiff was barred by time and was also not maintainable in the present form and that the suit was not properly valued for the purposes of court-fee and jurisdiction and, as such, the same was liable to be dismissed.