SHEOTAJ Vs. BANI SINGH AND OTHERS

JUDGEMENT

(1.) The present appeal directs challenge against judgment and decree dated 27.10.2017 passed by the Additional District Judge, Narnaul whereby appeal against judgment and decree dated 17.12.2014 passed by the Civil Judge (Junior Division), Narnaul was allowed and suit of the plaintiff-appellant for declaration and injunction was dismissed.

(2.) In short, case of the appellant is that the appellant and respondents are descendants of Jai Ram son of Puru Ram son of Lala Ram. Jai Ram was married to Smt. Surji and the plaintiff was born about 70 years ago from that wedlock. Smt. Surji died and Jai Ram married with Smt. Mewa Devi and defendants No. 1 to 9 were born from the wedlock of Jai Ram and Mewa Devi. Jai Ram and parties to the suit formed joint Hindu family. Defendants No. 5 to 9 were married and lost status of membership in the said joint Hindu family. Later, the plaintiff alongwith defendants No. 1 to 4 and 10 formed joint Hindu family as Jai Ram died long back. The plaintiff was 22 years old when defendant No. 1 was born and defendants No. 2 to 4 were born afterwards. It is averred that defendants No. 5 to 9 were married in wealthy families after giving them handsome dowry from funds of joint Hindu family. After their marriage, ceremonies like bhaat and chhuchhak were performed by the plaintiff and defendants No. 1 to 4 out of income of the joint Hindu family. The plaintiff treated defendant No. 10 with respect like his real mother. Defendants No. 5 to 10 proclaimed that they do not want any share in joint Hindu family and desired to release their share in suit property in favour of the plaintiff and defendants No. 1 to 4 in equal shares. In January 2004, at the time of Kuan Pujan ceremony of Happy son of Ashok Kumar son of Sheotaj, defendants No. 5 to 9 assembled in the village. They alongwith defendant No. 10 arrived at an oral family settlement in presence of relatives and respectables and released/relinquished their share of the suit property in favour of plaintiff and defendants No. 1 to 4 in equal share. Thus, plaintiff became co-sharer to the extent of 1/5th share while defendants No. 1 to 4 became owners to the extent of 4/5 shares equally. However, defendants No. 1 to 4 secretly colluded with defendants No. 5 to 10 and obtained judgment and decree dated 26.9.2009 in Civil Suit No. 284/2008 which are illegal, null and void and non est qua rights of the plaintiff as earlier suit filed by defendant Nos. 1 to 4 in which the plaintiff was impleaded as a party on application filed under Order 1 Rule 10 of the Code of Civil Procedure (in short "the Code") was dismissed as withdrawn unconditionally,therefore, the second suit is barred under Order 23 Rule 1 and 2 Rule 2 of the Code.

(3.) Defendants No. 1 to 5, 7 and 9 filed their written statement admitted the pedigree table but denied material averments made in the plaint. It is averred that after marriage of plaintiff, he never lived with Jai Ram nor there was joint income of the family. The plaintiff never cooperated with Jai Ram nor the self acquired property of Jai Ram was put in common pool.