HARISH KUMAR Vs. SATISH KUMAR AND ANOTHER

JUDGEMENT

(1.) Briefly stated facts of the case are that plaintiff Satish Kumar had filed a suit against his brothers Ramesh Kumar and Harish Kumar, seeking separate possession of 3/10 share by way of partition of constructed house over an area of 2 1/2 marlas comprised in Khasra No. 464/141 (0-5), Khewat No. 834, Khatoni No. 1757, as per jamabandi for the year 2009-10, of village Sheikhu Mandi Malout, fully described in headnote of the plaint.

(2.) As per version of the plaintiff, earlier the house in suit was owned by Mr. Harbans Lal, father of the parties. After death of Mr. Harbans Lal, the house was inherited by his five legal heirs i.e. four sons, namely, Satish Kumar - plaintiff, Ramesh Kumar - defendant No.1, Harish Kumar - defendant No.2, Jagdish Rai - son besides, widow Smt. Mohinder Kaur. Mutation No. 13849 was duly sanctioned in favour of all the legal heirs by way of natural succession and all of them became co-owners of the house in suit; that Smt. Mohinder Kaur sold her 1/10 share (half marla) to the plaintiff vide registered sale deed dated 11.6.2007 on the basis of which mutation No. 14692 was sanctioned, whereas Jagdish Rai sold his 1/10 share (half marla) to the plaintiff vide registered sale deed dated 8.4.2009, on the basis of which mutation No. 16165 was sanctioned. In that way, plaintiff became co-owner to the extent of 1-1/2 marla i.e. 3/10 share. The plaintiff was in possession of the portion described with letters EFCD and to protect his said possession he had filed a suit for permanent injunction against defendants with title ' Satish Kumar vs. Harish Bajaj ' in the Court of Civil Judge, Malout. However, the suit was dismissed, since defendants had taken possession of the said portion from the plaintiff during pendency of the suit. According to the plaintiff, he is entitled to separate possession to the extent of his share in the house in suit and when defendants did not accede to his request to give separate possession of his share, he brought the suit in question.

(3.) On notice, both the defendants appeared and filed separate written statements. In the written statement filed by defendant No.1 he has taken up various legal objections, including one challenging maintainability of the suit, contending that previously a family settlement had taken place between the parties, alongwith Jagdish Bajaj and Smt. Mohinder Kaur widow of Mr. Harbans Lal with regard to the house in suit; that the portion measuring 13 x 30 ft had fallen to the share of defendant No.1, whereas remaining portion of equal dimensions had gone to the share of defendant No.2 and an agreement to that effect was reduced into writing between the parties on 25.8.2006. The answering defendant is in possession of the said portion and is residing there with his family. Earlier the plaintiff had filed a suit for permanent injunction regarding this very property, which was dismissed by the Court on 25.9.2012, holding that the family settlement dated 25.8.2006 was valid and legal and plaintiff was debarred to file the suit under Order 2 Rule 2 CPC; that he had not approached the Court with clean hands and had suppressed the material facts; that no cause of action had arisen to him to bring the suit and he had no locus standi to do so; that the suit was not properly valued for the purpose of court fee and jurisdiction. On merits the defendant reiterated that a family settlement had taken place between the parties on 25.8.2006, in which half share in the house was given to defendant No.1 and the remaining half share to defendant No.2. In that way, the plaintiff has no concern with the house and he never came in possession of any portion of the house. Rather vide family settlement, he had relinquished his rights in the house in favour of the defendants, but he fraudulently got the sale deeds executed in his favour from Smt. Mohinder Kaur and Jagdish Rai. Those sale deeds are rather illegal, null and void and not binding upon the rights of the defendants. Smt. Mohinder Kaur and Jagdish Rai could not execute the sale deeds in favour of the plaintiff in view of the previous family settlement and they do not create any title in favour of the plaintiff.