JOGESHWAR Vs. VINOD KUMAR AND OTHERS

JUDGEMENT

(1.) The present appeal has been filed by defendant no.3 against the judgment of the Lower Appellate Court wherein his relief for declaring him as owner in possession of the disputed plot had been declined by the Lower Appellate Court on the ground that he had not filed any counter claim before the trial Court and could not agitate this matter for the first time in appeal.

(2.) The facts in brief are that the predecessor-in-interest, namely, Murlidhar of the respondents No.1 to 4 herein filed a suit for permanent injunction initially against respondents No.5 and 6 herein (defendants No.1 and 2), namely, Bajrang Lal and Rohtash Kumar. The suit was pertaining to the plot in dispute bearing unit No.W 218 boundaries of which were given in the plaint and was situated in Bhiwani. The case of the plaintiff was that the plot was owned by his father who had inducted one Sunder wife of Kesho Ram as tenant and that the father of the plaintiff had died on 3.3.1947 and the plaintiff has started residing in Kaithal since 1947 in connection with business. That on account of the old age of the construction on the plot, the same fell down and notice under Section 115/149 of the Municipal Committee Rules was issued in the name of the plaintiff and initially the house tax was paid by his father and it is the plaintiff who is now paying the same. It is alleged that since 1970-71 the suit property is in the name of the father of the plaintiff in the record of the Municipal Committee and defendants have no concern with the property and defendant no.1 wanted to sell the suit property to defendant no.2 by claiming himself to be owner of the same. Subsequently, defendant No.3 filed an application and he was made party vide order dated 23.2.1996, whereas defendant no.2 allowed himself to be proceeded against exparte on 9.1.1996. The case of the defendant no.1 was that he was in actual physical possession of the property in dispute for more than 12 years peacefully and openly and that before him his father was in actual possession. The possession of Sunder wife of Kesho Ram was admitted but it was contended that she was residing there with the consent of Nanga father of the answering defendant No.1. Defendant No.3 filed separate written statement and averred that house No.W 217 and W 218 were owned by one Sahla Brahman in the year 1916 and partitioned between Fateh Singh and Ram Parshad who got 2/3rd share in W 218 and 1/3rd share in W 217 which fell to the share of widow of Matu. On account of financial difficulties, Fateh Singh mortgaged with possession his share in favour of Chhaju Ram on 25.8.1920 and then again in favour of one Ganpat on 6.12.1920. It was alleged that Fateh Singh failed to get the mortgage redeemed and sold his mortgage rights in favour of Chhaju Ram on 30.7.1926 for a sale consideration of Rs.300/-. However, Chhaju Ram could not make the payment so Gangpat sold his mortgage rights in favour of Ram Swaroop son of Ram Narain on 3.8.1926. On the other hand, Chhaju Ram by playing fraud was executed sale deed in favour of Har Narain qua 1/3rd share for a sale consideration of Rs.99/- by Bakhtawari widow of Matu, grand mother of defendant no.1 despite knowing the fact that she has no concern or connection with property. On account of the forged deed Chhaju Ram in connivance with Shri Nanga father of defendant no.1 was succeeded by Radha Krishan in the year 1934, who further sold the same in favour of Ram Swaroop, father of answering defendant on 28.2.1950 and accordingly, defendant no.3 staked claim.

(3.) The trial Court after taking into consideration the pleadings framed the following issues:-