PHUSA RAM Vs. BHATI DECEASED

JUDGEMENT

(1.) Suit filed by the respondent-plaintiff was decreed by the trial Court vide judgment and decree dated 15.03.2016 and as the appeal preferred against the said decree failed and was dismissed on 14.05.2018, the appellants-defendants are before this Court in Regular Second Appeal. Parties to the lis, hereinafter, shall be referred to by their original positions in the suit.

(2.) Plaintiff prayed for a decree for partition of a land comprised in Ahata No.171, house No.239, measuring 14 biswansi as per Naksha Bandobasti and Khasra Abadi 1932 BK, situated in village Bawana, Tehsil and District Mahendergarh, Haryana as depicted and marked in the site plan as ABCD. Further, restraining the defendants from taking forcible possession of any specific portion of the suit property. In brief the case set out by her was that parties were co-owners in the suit property in which plaintiff had 1/6th share and the remaining 5/6th share was possessed by the defendants. Since the plaintiff did not intend to keep her share joint, thus the suit.

(3.) In the written statement filed by defendants No.1, 2 and 4 the existence and description of the suit property was admitted however, rest of the claim of the plaintiff was denied. It was maintained that Kehar Singh son of Jiwaram used to reside with his brothers Richpal and Hetram and upon his death predecessor-in-interest of defendants No. 1, 2 and 4 inherited his estate. No Will was executed by late Kehar Singh in favour of defendant No.3. Further, defendants No.1 and 2 had 1/2 share and defendant No.4 possessed 1/4th share in the suit property and they continued to be the owners in possession of their respective share for the past many years. Further, the suit property came to the share of Subhash son of Phusaram in mutual partition and, therefore, he was the owner in possession thereof but he was not joined as party to the suit. In the circumstances, question of plaintiff claiming 1/6th share in the suit land would not arise. Particularly, when the predecessor-in-interest of the answering defendants mutually partitioned the suit land 65-70 years ago, thus the suit was liable to be dismissed.