BRIJ RAJ SINGH Vs. LAKHI RAM

JUDGEMENT

(1.) This appeal is by one of the plaintiffs directed against the judgment of the Additional District Judge, Gurgaon, whereby his cross- objections filed under Order 41 Rule 22, Code of Civil Procedure, have been dismissed.

(2.) IN brief, the facts are that in suit No. 84 of 1944, Dalbir Singh, plaintiff, challenged the sale and mortgage effected by his father, Samran Singh. Challenge was under the Customary Law on the ground that the mortgage and the sale effected by his father was without any legal necessity. Suit was decreed on 12.2.1945 and decree was granted in favour of Dalbir Singh. Under the decree, sale-deed executed and registered on 3.6.1937 was not to effect the reversionary rights of the plaintiff after the death of Samran Singh, on payment of Rs. 2500/- to the vendes. Plaintiff was asked to deposit Rs. 1500/- for payment to the mortgage. On the death of Samran Singh, suit for possession was filed by Dalbir Singh. Vendees and their successors-in- interest (hereinafter referred to as vendees) raised various objections including that suit by Dalbir Singh alone is not competent as he is one of the four heirs of Samran Singh. In order to meet this objection raised by the vendees, the other three plaintiffs including the appellant herein, got themselves transposed as plaintiffs. On 23.10.1978, the trial court decreed the suit and a decree was passed in favour of plaintiff, Dalbir Singh, to the effect that he was held entitled to possession of suit land on payment of Rs. 4000/- to the defendants therein, i.e. vendees. Aggrieved against the judgment and decree, defendants filed an appeal before the District Judge, Gurgaon. In the said appeal, Brij Raj Singh, plaintiff (appellant herein) filed cross-objections. In his cross-objections, he challenged that part of the decree whereby the suit had been decreed only in favour of Dalbir Singh alone and not in favour of all the plaintiffs. His objection was that he was also entitled to share in the suit land being one of the heirs of Samran Singh. Appeal as well as the cross-objections were dismissed by the Additional District Judge vide judgment and decree dated 25.10.1975. Vendees filed R.S.A. No. 2751 if 1979 and the same was dismissed by this Court on 19.11.1979. On dismissal of the appeal, decree qua the vendees has become final. This appeal is by Brij Raj Singh, plaintiff.

(3.) AFTER hearing the counsel for the appellant and going through the record, I am of the view that the appeal has no merit and deserves to be dismissed. It is not in dispute that on the death of Samran Singh, initially Dalbir Singh filed civil suit in which other three heirs including the appellant were made as defendants. Dalbir Singh in para 7 of the plaint averred that he along with his three brothers including the appellant are the heirs of Samran Singh. He averred that Samran Singh during his life time made partition of the joint property and suit land came to his share. He averred that partition was effected by civil suit No. 218 of 1970 in the court of Sub Judge, Palwal, wherein the other heirs admitted that he alone is entitled to possession of suit land as its sole owner on payment of Rs. 4000/-. Appellant did not deny the averments made in para 7 of the plaint. So much so, when the appellant was transposed as plaintiff along with other heirs, the stand taken by all the plaintiffs in the amended plaint was that only the plaintiff, Dalbir Singh is entitled to the decree. It was their case that the appellant and other heirs have relinquished their right in the suit land by way of partition effected in civil suit No. 218 of 1970. Appellant in his statement as PW-1 admitted that during the life time of their father, joint land was partitioned and the land in suit came to the share of Dalbir Singh. In view of the clear admission by the appellant in the plaint as well as in his statement as PW-1 that as a result of partition of the joint land, suit land had come to the share of Dalbir Singh, it is not open to the appellant to set up a claim that he is entitled to 1/4th share being one of the heirs of Samran Singh. It was never his claim either in the pleadings or statement made in Court. In this view of the matter, no interference is called for in second appeal. Consequently, the appeal shall stand dismissed. No costs. Appeal dismissed.