AJIT SINGH Vs. RAMAIL SINGH

JUDGEMENT

(1.) DEFENDANT Ajit Singh has filed the present appeal, which has been directed against the judgment and decree dated 14. 8. 1991 passed by the Court of Additional District Judge, Kapurthala, vide which the said learned Court accepted the appeal and set aside the judgment and decree dated 30. 8. 1988 passed by the Court of Shri K. L. Chopra, Sub Judge Ist Class, Phagwara (trial Court) and decreed the suit of the plaintiffs-respondents by giving them a declaration that they are the owners in joint possession to the extent of 2/3rd share in the property measuring 68 Kanals 7 Marlas as described in the head note of the plaint. The first appellate Court, however, dismissed the suit of the plaintiffs regarding the perpetual injunction. However, defendant No. 2 Ajit Singh was restrained from alienating the property which he purchased from Smt. Bhago defendant No. 1 more than her share. The first appellate Court also made the observation that Ajit Singh appellant is at liberty to alienate one-third share of the property in dispute which he purchased from Smt. Bhago because Smt. Bhago was held to be the owner of the suit land to the extent of one third share only.

(2.) BRIEF facts of the case are that Ramail Singh and Karnail Singh, minor sons of Bachint Singh, through their guardian Kewal Singh son of Lachhman Singh filed a suit for declaration and for injunction against Smt. Bhago (mother of plaintiffs No. 1 and 2 and widow of Bachint Singh) (defendant No. 1), Ajit Singh (defendant No. 2) and Kuldip Singh (defendant No. 3) to the effect that the plaintiffs, who are the minor sons of Bachint Singh, are the owners in possession to the extent of 7/9 share in the property in dispute measuring 68 Kanals 7 Marias and that the sale deed executed by defendant No. 1 Smt. Bhago in favour of defendant No. 2 Ajit Singh on 14. 1. 1986 is illegal, void and is liable to be set aside. The plaintiffs also prayed for injunction praying that defendants No. 1 and 2 be restrained from alienating, transferring the suit land and dispossessing the plaintiffs from the suit land forcibly. The case set up by the plaintiffs was that they are the minor sons of Bachint Singh deceased and the suit is being filed through their guardian Kewal Singh. Said Bachint Singh was the owner of the land measuring 68 Kanals 7 Marlas, fully described in the head note of the plaint. Defendant No. 1 Smt. Bhago is the mother of the plaintiff. Though she is the natural guardian, but the interests of the plaintiffs and defendant No. 1 are clashing with each other, so the said suit has been filed through their next friend Kewal Singh. The plaintiffs alleged that they are the owners to the extent of 7/9 share of the land. Bachint Singh deceased had two wives, namely Smt. Bant Kaur and Smt. Bhago. After the death of Bachint Singh, the plaintiff became entitled to the extent of two-third share but imitation No. 674 dated 28. 2. 1978 of village Baran and mutation of village Bhak Baran showing the plaintiffs as owner to the extent of one-half share was wrongly sanctioned and the said mutation has no effect upon the lawful rights of the plaintiff of the property in dispute and the said mutation had no effect upon the legal rights of the plaintiffs of the property in dispute and that mutation Nos. 547 and 747 dated 3. 2. 1986 of the properties left by the deceased Bant Kaur, were wrongly sanctioned in favour of the other widow, namely, Smt. Bhago, whereas after the death of Smt. Bant Kaur, the plaintiffs have be come owner of the land to the extent of 7/9 share, as they have succeeded to the interests of their step-mother Smt. Bant Kaur. According to the plaintiffs, Smt. Bhago had 2/9 share in the property of the Bachint Singh deceased. She had already sold 9 Kanals and 2 Marlas out of her share and thereafter she was owning only 7 Kanals 10 Marlas. However, she sold 19 Kanals 19 Maria vide sale deed dated 14. 1. 1986 in favour of defendant No. 3 and the said sale deed is illegal, void and ineffective upon the rights of the plaintiffs because Smt. Bhago was not the owner to that extent and she could not pass a better title. The plaintiffs further alleged that defendants Nos. 2 and 3 are bent upon dispossessing them on the basis of the illegal sale dated 14. 1. 1986 Defendant No. 1 to 3 were called upon several times to admit the claim of the plaintiffs, but to no effect. Hence the suit.

(3.) FROM the pleadings of the parties, the learned trial Court framed the following issues :