NARESH KUMAR Vs. KAILASH DEVI

JUDGEMENT

(1.) THIS is defendants' regular second appeal against the judgment and decree of the District Judge, Rohtak, whereby the appeal filed against the judgment and decree of the trial Court was dismissed.

(2.) BRIEFLY put, the facts of the case are that Purshtom Dass, predecessor-in-interest of the present respondents, filed a suit for possession by way pf partition against Chander Parkash, predecessor-in-interest of the present appellants, and others with the allegation that the parties are related to each other as per pedigree table given in para 1 of the plaint and that the property described in para No. 2 of the plaint had come to the plaintiff and defendant No. 1 Chander Parkash through their grand-father Dewat Ram. On the death of Dewat Ram, this property was inherited by the plaintiff and defendant No. 1 along with their father Madan Lal. It is further alleged that on a dispute between the parties a Civil Suit bearing No. 294 was instituted on 6. 6. 1972 which was decided on 23. 10. 1972. In this suit the parties compromised and so the suit was disposed of in terms of the compromise i. e. share of the plaintiff was separate whereas Madan Lal and Chander Parkash share was kept joint Madan Lal died on 21. 2. 1973. Madan Lal had executed a will on 30. 1. 1972. As per will, he gave 1/2 share of his property to the plaintiff and other 1/2 share to defendant No. 1 Chander Parkash. This way the plaintiff lay claim to the extent of 1/4th share in respect of the property kept jointly by Madan Lal and Chander Parkash as per decree dated 23. 10. 1972. The plaintiff further alleged that Chander Parkash-now represented by the appellants-illegally mortgaged four shops detailed in para 6 of the plaint with possession with various persons without any authority. Since plaintiff was owner to the extent of 1/4th share in the said property including the shops illegally mortgaged by defendant No. 1, the same does not bind the plaintiff and he is entitled to claim his 1/4th share by way of partition free from all encumbrances without payment of any charge/mortgage amount. Accordingly, the plaintiff prayed for a decree for possession by way of partition of the property shown in red colour in the site plan attached to the plaint.

(3.) THE defendants filed joint written statement and controverted the various allegations contained in the plaint. It was contended by the defendants that the suit property was partitioned in two shares only and so the plaintiff was given 1/2 share which was shown in green colour and other 1/2 share shown in red colour fell to the share of defendant No. 1 Chander Parkash. It was further alleged that since Madan Lal was residing with defendant No. 1 so he was shown jointly with defendant No. 1 Chander Parkash-i. e. to say the property was partitioned into two portions one falling to the share of the plaintiff and the other to defendant No. 1. The exection of will by Madan Lal was denied. It was further contended that Madan Lal had no share in the property as per decree dated 23. 10. 1972. However, the defendants admitted that defendant No. 1 mortgaged various shops as detailed in para No. 6 of the plaint but all the same denied that the said mortgage was without any right or illegal. The defendants further defended the transfer effected in favour of defendant Nos. 2 and 3.