KISHAN Vs. UMESH

JUDGEMENT

(1.) This is plaintiffs second appeal challenging the judgments and decrees of the Courts below whereby his suit for declaration was dismissed being time barred. As per the averments made in the suit, the defendants, namely, Bhagat Singh and Umed Singh, and one Ram Avtar (since deceased) were the real maternal uncles of the appellant and pro-forma respondents. The plaintiff-appellant and proforma respondents were in need of money for clearing a Tractor loan, due to which their mother requested her brothers for financial help. The defendants No. 6 and 7 and their deceased brother Ram Avtar agreed to help the plaintiff as well as the proforma defendants. As per the plaintiff, Rs. 90,000 were needed to make payment of the Tractor loan. Defendants No. 6 and 7 and their deceased brother Ram Avtar asked for a guarantee/security for return of money and interest thereon. The plaintiff and proforma defendants told their maternal uncles that the loan will be repaid as per their requirement and they will pay 1/3rd Batai to them out of the yield from the land. They further agreed to transfer 3 acres of land out of their land in favour of their material uncles. The said proposal was accepted by their uncles. It was further pleaded that their maternal uncles gave Rs. 30,000 to their mother on the next day. As per the agreement, the plaintiff along with pro-forma defendants and their mother accompanied by their maternal uncles came to village Butani and further gave Rs. 30,000 to them. 3 acres of land was given to maternal uncles by way of sale deed dated 03.02.1992 out of the land comprised in Khewat No. 149, Khata No. 235 total Kitas 75 total area 450 Kanals 11 Marlas i.e. 480/9011 shares of total land 24 Kanals as per the Jamabandi for the year 1988-89. The remaining amount of Rs. 15,000 was to be paid by their maternal uncles after one month and the total expenses of sale deed were to be borne by the plaintiff and proforma defendants. It was also settled that whenever the plaintiff and proforma defendants will be able to repay the amount of Rs. 75,000 to their material uncles, they will transfer the land in their favour. It was further pleaded that the plaintiff and proforma defendants used to give 1/3rd Batai to the defendants No. 6 and 7 and deceased Ram Avtar. An application for partition was filed by Narain Singh etc. on 07.10.2001 before the AC (2nd Grade), Pillukhera. At that time, the plaintiff along with the Panchayat went to his maternal uncles in the month of October 2001 and requested them that the land given by them should be included in their Khata and also told them that they are ready to make payment of Rs. 90,000. After waiting for six months, the plaintiff again went to the house of defendant No. 6 and his real brother Ram Avtar in the month of March 2002 and again requested them to transfer the land in their favour as they were ready to make payment of Rs. 90,000 to them; however, they did not turn up. Thereafter, again mother of the plaintiff and proforma defendants went to village Jarodha Majra in the month of August 2002 to decide the matter amicably, but nothing was done.

(2.) It is further case of the plaintiff-appellant, that defendants No. 6 and 7 along with Ram Avtar told the plaintiff and his brothers that joint Khata be separated first and thereafter everything will be settled. They continued to give 1/3rd Batai regularly till the death of Ram Avtar and after his death, defendants No. 1 to 5 were impleaded in the partition application pending before the Commissioner, Hissar Division, Hissar. The plaintiff again requested the defendants to transfer the land in dispute in favour of the plaintiff and proforma defendants as they were ready to make payment of Rs. 90,000, but nothing happened. Thereafter, the defendants came to village Butani and tried to take possession of the land in dispute forcibly in the month of November 2007 and further threatened to alienate the said land. Thus, necessity arose to file the instant suit.

(3.) Upon notice, defendants No. 1 to 7 appeared and filed written statement raising various preliminary objections. On merits, it was averred that suit land was not joint as the Khewat was already partitioned. It was further averred that the plaintiff had cooked up a false story in order to usurp their land. The story of taking loan by the plaintiff and proforma defendants was stated to be false. It was further averred that the plaintiff and proforma defendants initiated partition proceedings in the year 2003 before the Court of AC (2nd Grade) Pillukhera, who vide order dated 19.05.2004 confirmed Naksha Be and vide order dated 27.04.2006 issued Sanad Taksim. Against the aforesaid order, the plaintiff and proforma defendants filed an appeal, which was dismissed by the Collector, Sub Division, Safidon vide order dated 09.02.2006 and the revision petition was pending before the Commissioner, Hissar Division, Hissar. Further as per the defendants, the sale deed in question was executed by the plaintiff genuinely and thus, the suit was liable to be dismissed.