KRISHAN CHAND JAIN Vs. RAVINDER JAIN

JUDGEMENT

(1.) SUIT filed by the plaintiff was dismissed by the trial court vide judgment and decree dated 11.03.2008. Appeal preferred against the said decree failed and was dismissed on 11.11.2009. 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 a suit filed by the plaintiff, he prayed for a declaration that he and other heirs of late Charanji Lal son of Matu Ram were joint owners of the suit property and decree dated 12.12.1992, rendered in civil suit No.739 of 1992, suffered by Charanji Lal, in favour of the defendant Ravinder Jain, was a result of fraud and was a void ab initio. It was averred that the suit property, measuring 75 sq. yards, shown in the red colour in the site plan to begin with, was a double storeyed shop having three compartments, but as the building had collapsed, it was reduced to a vacant site. And was an ancestral property in the hands of Charanji Lal son of Matu Ram. It was averred that during the lifetime of late Chiranji Lal, there was a partition of all the Joint Hindu Family properties including the suit land vide a duly executed partition deed dated 06.08.1982. And the suit property had fallen to the share of deceased Charanji Lal i.e. father of the plaintiff. It was maintained that the defendant had procured a judgment and decree dated 12.12.1992, rendered in civil suit No.739 of 1992, and the same was a result of fraud and thus, liable to be set aside. Further, as the said decree involved an immoveable property, valuing more than Rs. 100/ -, it required compulsory registration. Since defendant refused to acknowledge the claim of the plaintiff and to get the decree dated 12.12.1992, set aside, thus, the suit.

(3.) IN defence, it was pleaded, inter alia, that the defendant was in actual physical possession of the suit property and thus, the declaration prayed for by the plaintiff, in the absence of any prayer for possession, could not be granted. Further, suit property was in possession of Siri Ram in the capacity of tenant, who was inducted by Charanji Lal, the grandfather of the defendant. As the suit property had become unsafe and unfit, steps for ejectment were taken by the defendant against Siri Ram and eventually, the order of eviction was passed against the tenant and possession of the demised premises was delivered to the defendant. It was maintained that pursuant to a partition that was effected by Charanji Lal of his property amongst his sons, the suit property had fallen to his exclusive share. Accordingly, it was averred that even if it was assumed that the suit property was ancestral, the same having fallen to the share of Charanji Lal, pursuant to a family partition, attained the character of a self acquired property. Therefore, the decree dated 12.12.1992, was stated to be legal and valid. And also that it did not require registration. The decree dated 12.12.1992, was suffered by Charanji Lal in favour of the defendant with his free consent. Post passing of the decree dated 12.12.1992, suit property was mutated in the Municipal record and House Tax register in the name of the defendant. In fact, defendant was recorded to be the owner of the suit property during the lifetime of Charanji Lal. Accordingly, defendant prayed for dismissal of the suit.