TEJ PAL AND ORS. Vs. JAGMAL SINGH

JUDGEMENT

(1.) This order shall dispose of the above titled second appeals, as they arise from the same set of facts.

(2.) The appeal is by defendants No. 1 and 2 who face an action for injunction brought at the instance of their brother on a claim that he is entitled to a joint possession of all the suit properties and also sought by means by another suit that the so-called release execute by the father 3rd defendant, who died subsequently during the pendency of the suit, in favour of defendants No.1 and 2 through a document said to have been made on 15.5.2001, described as dastar bardarinama as null land void and not binding on the plaintiff.

(3.) The suit was contested on a plea that the family, although originally joint had been partitioned and the plaintiff had his own share given to him and even the house property was divided and the parties had separate mess. Since the defendants had admitted to the ancestral character of the property, it became essential to consider the evidence whether the plaintiff's right could be defeated by any partition in the manner pleaded and the trial court placed the burden correctly on defendants No. 1 and 2 to prove that there was a partition. It adverted to the evidence of the defendants in its judgment by observing that the defendants did not give the date of partition, the particular extents of property which each member was given, the presence of any third party at the time of partition and the amount which was alleged to have been given. The court also observed that there had been no mutation of entries of properties jointly standing in their names and in the name of the father only with reference to the properties of an extent of 32 kanals 16 marlas, which was the subject of release. When the court found that there was no proof of partition, it held that the father could not have released the interest in the property in favour of defendants No. 1 and 2 only and cited voluminous case law without discussing any of them that as per the decisions cited, the defendants could not defeat the plaintiff's right of joint possession. However, the plaintiff's relief for mandatory injunction for removal of wall which brought about the division within the house was not favourably considered in favour of the plaintiffs. It would appear from the record that the plaintiff himself did not file any appeal against the relief declined to him and rest contended with the rest of the portion of the decree in the two suits. The defendants preferred an appeal and the appeal confirmed the same finding.