HARJINDER SINGH Vs. GURNAM SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has been directed against the judgment and decree, dated March 3, 1979 of the Court of learned Additional District Judge, Ludhiana, of affirmance of the judgment and decree dated April 26, 1978 of the trial Court.

(2.) FACTS are that Harjinder Singh filed a suit for declaration to the effect that he is in continuous possession as owner of the house measuring 1 Kanal 7 Marias comprising in Khasra No. 654 as entered in Jamabandi for the year 1967-68 situated in Sawaddi Khas, Tehsil Jagraon shown in red colour in the plan attached and fully described in the head note of the plaint. It was alleged by him that according to the revenue record Khasra No. 654 is joint ownership of the plaintiff along with his brothers. However, he alone is in exclusive possession of the same for the last 19 years. He further pleaded that Gurnam Singh, Parmatma Singh and Jasmel Singh are his real brothers. They are in possession of another plot belonging to the parties. According to Harjinder Singh, he himself raised construction in the plot in dispute and the plot is being used by him for the purpose of storing manure. According to him, respondents 1 to 3 are not in physical possession of any portion of the plot in dispute. It was pleaded that respondent 4 and 5 alleged themselves to be the purchasers of 10 Maria of land, out of which Plot in dispute is alleged to have been sold by a sale deed by Gurnam Singh in their favour. He further pleaded that property of the parties already stands partitioned and that whole Khasra No. 654 fell to his share. It was averred that on the basis of sale deed allegedly executed by Gurnam Singh defendant No. 1, defendants 4 and 5 wanted to take possession of 10 Marias of land on the eastern side of Khasra No. 654 in illegal and forcible manner to which they are not entitled. He requested respondents 4 and 5 not to do so, but they did not accede to his request. Hence, he filed the suit, for declaration. In the alternative, a prayer was also made that he be given possession of house measuring 1 Kanal 7 Marias shown in read colour as co-sharer on the basis of ownership.

(3.) THE suit was contested by Mukhtiar Singh and Gulzar Singh, defendants 4 and 5, respectively. The defendants pleaded that the area of Khasra No. 654 is 2 Kanal 7 Maria in which Gurnam Singh had 1/4 share. He constructed one kotha in the area of said 10 Marias. Thereafter, it was sold to Mukhtiar Singh and Gulzar Singh defendants 4 and 5 on June 16, 1971 for a consideration of Rs. 5,000/ -. It was further pleaded that after the execution of the sale deed, defendants 4 and 5 came into actual physical possession of the property in dispute. As such, the suit is not maintainable in the present form. It was further pleaded that they are bona fide purchasers for consideration without notice. The allegation that the plaintiff had constructed one kotha by spending Rs. 1,000.00 was specifically controverted. It was also denied that plaintiff had ever planted any tree. Following Issues were framed by the trial Court: 1) Whether the property sold by defendant No. 1 to defendants No. 4 and 5 had fallen to the share of defendant No. 1 in family partition? OPd 2) If issue No. 1 is not proved, whether Gurnam Singh defendant No. 1 as a co-sharer in possession transferred the property in dispute to defendants 4 and 5? OPd 3) Whether the plaintiff is in possession of the property in dispute and the suit for declaration can proceed in the present from? OPp 4) Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPp 5) Whether the suit is within time? OPp 6) Whether the defendants No. 4 and 5 are bona fide purchasers for consideration and without notice? OPd 7) Whether the plaintiff is estopped by his acts and conduct from filing the present suit? OPd 8) Whether the defendants Nos. 4 and 5 have effected improvements in the property in dispute, if so, to what extent and of what value? OPd 9) relief.