KULDEEP SINGH Vs. GURDIAL SINGH ALIAS DIAL SINGH

JUDGEMENT

(1.) THIS order shall dispose of two regular second appeals bearing Nos. 2056 of 1993 and 2843 of 1980 titled Kuldeep Singh and others v. Gurdial Singh alias Dial Singh and others and Bhajan Singh v. Mehma Singh and another, respectively. For facility facts are being taken from RSA No. 2056 of 1993. Present regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which a decree of separate possession in favour of the plaintiffs to the extent of 66 kanals 12 marlas out of the ancestral land and to the extent of 1/2 share of 8 kanals 6 marlas was passed.

(2.) THE plaintiff-appellants had filed a suit for declaration claiming therein that the plaintiff Nos. 1 to 5 and defendant Nos. 1 to 11 and 13 are joint owners of the suit property as co-parceners, and being heirs of Mehma Singh and also that plaintiff Nos. 1 to 5 and defendant No. 13 being heirs of Bhajan Singh and consequently the plaintiffs and defendants are entitled to get joint possession of the suit property and also separate possession by partition of their respective shares and that the collusive decree in suit No. 422 of 1978 decided on 5.8.1978 suffered by late Mehma Singh in favour of defendant Nos. 2 to 7 of land mentioned in (c) below and the gift deeds executed by late Mehma Singh in favour of defendant No. 2, on 5.2.1971 in respect of land mentioned at (e) and house at (f) and that the will made by late Mehma Singh on 29.9.1977 or any other date in favour of defendant Gurdial Singh or any other defendant in respect of the suit property or any part thereof, are null and void, illegal and ineffective and that disposal of property by such act of Mehma Singh is not binding on the reversionary rights and rights of heirship of the parties and that land (a) of the plaint placed under mortgage with Bhajan Singh and defendant Gurdial Singh by Mehma Singh deceased, out of the suit land was merged into ownership with the parties according to their shares, on the death of Mehma Singh and also that entires made in the revenue records after setting aside the collusive decree in suit file No. 422 are incorrect and are liable to be corrected.

(3.) UPON notice having been issued to the defendants, defendant Nos. 1 to 7 filed written statement raising preliminary objections i.e. Mehma Singh son of Amar Singh as exclusive owner filed suit No. 226 dated 15.9.1964 against his son Bhajan Singh for possession of land shown by letters D in the head note of the plaint, Bhajan Singh pleaded his ownership of this land by adverse possession and through the family settlement, but the said suit was decreed on 31.7.1965. The appeal against the said Judgment was also dismissed by the District Judge, Patiala on 20.7.1966 and RSA No. 822 of 196 was also dismissed by this Court on 22.3.1977. Bhajan Singh again filed suit No. 41-T/257/1977 against Mehma Singh in respect of the said land for permanent injunction. But the same was dismissed being barred under the principles of res judicata on 30.7.1980 and its appeal was also dismissed by the Additional District Judge Patiala on 24.11.1980. Bhajan Singh filed suit No. 235 on 20.5.1971 under Customary Law to challenge gift dated 5.2.1971 of land mentioned at head note (b), (e) and (f) of the plaint by Mehma Singh to Sarmukh Singh. The suit was decreed on 21.2.1973 and its appeal by Sarmukh Singh was accepted by Additional District Judge, Patiala on 12.8.1973. RSA filed by Bhajan Singh was also dismissed on 11.1.1974. Bhajan Singh again filed suit No. 387 of 10.6.1977 challenging the aforesaid gift to Sarmukh Singh under Hindu Law and prayed for joint possession of land as coparcener. That suit was dismissed as barred by res judicata by the Additional District Judge Patiala on 5.5.1980. RSA filed by Bhajan Singh was also dismissed on 25.9.1980. There is misjoinder of all defendant Nos. 8, 9 and 10 in the presence of their respective fathers who are also defendants in the case. Nor their interest in the suit land can be determined as entered in para No. 21 of the plaint.