AMRIT PAL SINGH Vs. MAGHAR SINGH AND ANOTHER

JUDGEMENT

(1.) Suit filed by the plaintiff was dismissed by the trial Court vide judgment and decree dated 15.01.2008. Appeal preferred against the said decree failed and was dismissed on 19.03.2009. This is how, plaintiff is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) In short, in a suit filed by late Gurdial Singh, he prayed for a declaration that he was the owner in possession of two electric motors i.e. 5 HP having account No.KK65 AP and 7 1/2 HP, bearing account No.KK 79 AP to the extent of 1/2 share and was entitled thereto by way of partition. A decree for injunction was also claimed restraining defendants from creating any impediment for the plaintiff from taking water from the said two motors. It was averred that father of the plaintiff and defendants No.1 and 2 were the owner in possession of the aforesaid two motors and after their death, plaintiff and defendants had become owners to the extent of half share each of the suit property i.e. motors in question. It was averred that pursuant to an agreement dated 16.05.1985 the landed property owned by the parties, was partitioned, and consequently they were owner in possession of their respective shares. However, the two motors that were installed in the land were not subjected to partition as these were to be used jointly by the parties. Kartar Singh, who happened to be the father of defendants No.1 and 2 and husband of defendant No.3, died and his estate was inherited by the defendants. However, as defendants, in breach of the terms and conditions of the agreement dated 16.05.1985, were causing hindrance for the plaintiff to use the aforesaid two motors, thus the suit.

(3.) In defence, it was pleaded inter alia that the agreement dated 16.05.1985, was never executed between the parties. Nor any partition was ever effected pursuant to the said agreement. Agreement in question was got fraudulently executed and the same was never reflected in the revenue record. It was maintained that even the account number of the motors were not mentioned in the agreement, therefore, plaintiff had no concern with the motors. In fact, the motors were installed in the name of Kartar Singh i.e. predecessor in interest of defendants, and, thus the defendants inherited them. Still further, two separate motors i.e. bearing account No.KK-120-AP and KK-122-AP, were in the name of the plaintiff and this fact was kept concealed.