BHAGWANA @ BHAGWAN DASS Vs. BALRAM AND OTHERS

JUDGEMENT

(1.) C. M. No. 4440-C of 2012 Application is allowed and annexed reply to application for additional evidence is taken on record, subject to all just exceptions. Main Appeal :

(2.) Suit was filed by plaintiff-appellant against his brothers Balram, Rama Nand (since deceased and represented by respondents no.2 to 7 as his legal representatives) and Puran Chand as defendants no.1 to 3 respectively and Durga Parshad and Umesh Kumar - both sons of Dal Chand (another brother of the plaintiff) as defendants no.4 and 5. The plaintiff alleged that he is owner in possession of 4/5th share of suit land measuring 04 kanals 14 marlas. Defendants have no concern with the same. However, on the basis of alleged judgment and decree dated 14.06.1989, defendants have got entered mutation no.1624 of the suit land sanctioned in their favour on 19.07.1989. However, no such suit was ever filed by defendants against present plaintiff nor the present plaintiff appeared in any such suit nor filed written statement nor made statement in Court nor any decree dated 14.06.1989 was passed in his favour. Accordingly, alleged decree dated 14.06.1989 and mutation no.1624 are null and void and not binding on the plaintiff. The plaintiff sought declaration to this effect along with permanent injunction restraining the defendants from alienating the suit land in any manner and from interfering in possession of the plaintiff thereon.

(3.) Only defendant no.3 contested the suit, whereas the remaining defendants were proceeded ex-parte. Defendant no.3 Puran Chand (respondent no.8 herein) alleged that he is exclusive owner in possession of the suit land since the year 1972. Plaintiff has no concern with the same. Earlier, plaintiff and all the defendants and Dal Chand - father of defendants no.4 and 5 were coparceners after the death of Jangli @ Janki (father of plaintiff and defendants no.1 to 3 and grandfather of defendants no.4 and 5). Plaintiff was karta of the coparcenary because all the defendants were in service out of station. They were giving their salaries to the plaintiff. The suit property was purchased by all sons of Jangli out of common hotch potch income, but the sale deed was obtained in the name of plaintiff only as other coparceners, being in service, were not available. A residential plot measuring 250 sq. yards was purchased in Rohtak in the name of defendant no.1 only. Suit property was owned and possessed by the parties in equal shares. Plaintiff was not its exclusive owner. All sons of Jangli separated in the year 1972 and divided the residential properties including the suit property by way of oral family settlement, in which the suit property fell to the share of defendant no.3, whereas other coparceners were given their due share from other residential ancestral property and since then, parties are in exclusive possession of their respective properties. Defendant no.3 is absolute owner and in exclusive possession of the suit property since the year 1972. He also raised construction in it. The aforesaid family settlement was confirmed by judgment and decree dated 14.06.1989. In that case, the present plaintiff appeared and engaged counsel and filed written statement and also made statement in Court admitting the claim of present defendant no.3 being exclusive owner in possession of the suit property. Defendant no.3 also claimed to be owner in possession of the suit property by way of adverse possession. Various other pleas were also raised.