SHIV CHARAN Vs. PYARE LAL

JUDGEMENT

(1.) The brief facts of the case are that the plaintiff-respondent filed a suit alleging that he alongwith Sham Lal(defendant No. 2) and Adesh Kumar (respondent No. 3), and late Ram Swarup were the co-owners/co-sharers of the property and were in actual physical possession of the same. Ram Swarup is said to have died on 16.4.1995 leaving the plaintiff-respondent and Shiv Charan and Sham Lal as the only legal heirs and his successors. According to the plaintiff-respondent, he had inherited 1/3rd share of the property of Ram Swarup. A decree was suffered in a Civil Suit bearing No. 185 of 20.3.1992. To appreciate the controversy which has been raised by the plaintiff-respondent in the suit, it is necessary to rely on the pedigree table, which is as under: Sulhar | Mangla | ------------------------------------------ | | | | Pyare Lal Sham Lal Shiv Charan Ram Sarup @ (Plaintiff) (Deft.No.2) (Deft.No.1) Saroopa | (Died issue | Pardeep less, | without | any son and | wife) | (Deft.No.7) ----------------------------- | | | Adesh Kumar Surjit Udaibir (Deft.No.3) (Deft.No.5) (Deft.No.4)

(2.) In dispute is the property left behind by Ram Swarup, who is stated to have died issue less. Ram Swarup is alleged to have suffered a collusive decree on 22.4.1992 in favour of Adesh Kumar, Udaibir, Sarjit and Pradeep, who were arrayed as defendant Nos. 3,4,5 and 7 respectively by the plaintiff respondent. It was pleaded by the plaintiff-respondent that since Ram Swarup was his brother and had died issueless, therefore, he was entitled to his share in the property of Ram Swarup and that the collusive decree suffered by him could not bind the plaintiff-respondent. The decree was bad inasmuch as there was no family settlement and that the decree involved the transfer of immovable property worth more than Rs. 100/-, which could not have been transferred without it being registered.

(3.) The defendant-appellants pleaded that the plaintiff-respondent had separated himself from his real brothers, Shiv Charan, Sham Lal and Ram Swarup and was separate in mess for the last more than 30 years. Deceased Ram Swarup was staying with the appellants and on account of the services rendered by the appellants to Ram Swarup, he had suffered a decree in their favour on 22.4.1992. This was in the knowledge of the plaintiff-respondent. Besides, the plaintiff respondent had instituted a suit for partition, which was effected on 4.7.1997 and a sanad takseem was accordingly issued to that effect. The present suit was filed on 4.10.1997. The plaintiff-respondent had not raised any dispute qua the decree dated 22.4.1992 at the time of raising the dispute of partition, therefore, now it did not lie in his mouth to say that the decree was bad.