GIAN CHAND Vs. RAM DAYAL

JUDGEMENT

(1.) Appellants-defendants have preferred the present Regular Second Appeal against the judgment and decree dtd. 22/5/1993 passed in Civil Appeal No.169 of 1993 whereby the Additional District Judge, Faridabad, has set aside the judgment and decree dtd. 16/5/1991 passed by the Court of Sh. Ashok Bhardwaj, HCS, Sub Judge First Class, Palwal, passed in Civil Suit No.963 of 27/9/1985 dismissing the suit.

(2.) Briefly summarized, the facts of the present case are that respondent-plaintiff had filed a suit for declaration and for possession as a consequential relief averring that Sh. Lohari son of Jugla son of Bhawani resident of Village Baghola was earlier owner in possession of the suit properties. The aforesaid Lohari died issueless and was succeeded by his widow Sompti. That Gunga father of the respondent-plaintiff and Lohari were the sons of Sh Jugla and were hence brothers. After the death of Sompti, respondent-plaintiff being the nearest heir of Lohari became owner of the suit properties left by Lohari and Sompti. It is further averred that one Mamraj father of appellants-defendant No. 1 and 2 was son of daughter of Jugla and sister of Gunga and Lohari. Mamraj was brought up by Lohari and Gunga and he also settled with his maternal uncle in the village. Appellants-defendants No.1 and 2 Gian Chand and Dubban, the sons of Mamraj were residing in village Baghola. The appellants-defendants No. 1 and 2 forcibly took the possession of the house described in the plaint after the death of Sompti despite having no right, title or interest in the suit property and they got the mutation sanctioned in their favour. The said suit was accordingly filed for seeking a declaration and the possession as a consequential relief claiming themselves to be the owners of the house.

(3.) On notice, the defendants entered appearance and filed written statement taking various preliminary objections regarding the locus standi, cause of action and maintainability amongst others. It was admitted that Lohari was owner in possession of the suit property and submitted after his death, the same was inherited by Sompti mother of defendant No.3 and after her death, defendant No. 3 became owner of the suit property by inheritance through mutation No. 3121 dtd. 18/3/1986. It was averred that defendant No. 3 Dhakali had been born out of the wedlock of Lohari and Sompti and she was the only legal heir to succeed the properties left by deceased Sompti. It was denied that there was any relationship between Lohari and Gunga or that they were brothers as claimed by the respondent-plaintiff and stated that Lohari was the only son of Jugla. The claim of the respondent- plaintiff as nearest heir of Sompti was also denied. It was averred that defendant No. 3 being the daughter of Lohari and Sompti was the only legal heir to succeed to the estate left by Sompti and she became absolute owner of the suit property after her death. It was averred that the appellants- defendants No. 1 and 2 Gian Chand and Dibban were not brought up by Lohari and Gunga nor marriage of Mamraj was performed by Lohari and Gunga. It was thus denied that the respondent-plaintiff had any right title or interest in the suit property.