JAGMOHAN Vs. RAJBIR

JUDGEMENT

(1.) Briefly stated facts of the case are that, plaintiffs- Rajbir aged about 44 years, Smt. Nimbo aged about 74 years, Smt. Roshni aged about 55 years, Smt. Kamlesh aged about 40 years, Smt. Sudesh aged about 38 years - all daughters of Ranpat, Smt. Sunita aged about 25 years, daughter of Smt. Murti, daughter of Ranpat through Rajbir, their Special Attorney, all residents of village Pur, Tehsil Khera, District Bhiwani, had brought a suit against defendants, namely, Jagmohan @ Mohan - son, Smt Phoolpati, Smt. Santosh daughters, of Ranpat, residents of village Pur, Tehsil Bawani Khera, District Bhiwani; Satbir, Jagdish, Jai Bhagwan sons, Smt. Shanti widow, Smt. Kamlesh, Smt. Sheela daughters of Amrit; Pawan and Kulwinder sons, Smt. Mandeep daughter, of Ramrati; Richhpal and Bhale sons of Gollu; Jagbir, Mahabir, Jaibir, Jagdish, Ramesh and Joginder - all sons of Gopal, all residents of village Pur, Tehsil Bawani Khera, Disrict Bhiwani, seeking possession by way of partition of the suit property.

(2.) As per version of the plaintiffs, land measuring 6 kanal 1 marlas, comprised in Khewat No. 147, Khatoni No. 206 situated at village Pur, Tehsil Bawani Khera, District Bhiwani, is jointly owned and possessed by the parties to the suit; that earlier a family partition had taken place between the previous owners namely, Ranpat, predecessor-in-interest of the plaintiffs and defendants No. 1 to 3; that Ranpat was given the area shown in red colour, whereas Amrit predecessor in interest of defendants No. 4 to 12 was given the area shown in yellow colour, whereas one Gollu predecessor in interest of defendants No. 13 to 20 was given an area shown in blue colour in the site plan attached with the plaint; that no formal partition between the parties had taken place between the parties, as such there remained a continuous dispute between them. Ranpat had raised some construction in his share and the same was being used by said Ranpat and his legal heirs. Of late, defendant No.1 threatened to forcibly occupy the share of Ranpat. Then Ranpat filed a civil suit against defendant No.1 Jagmohan @ Mohan, who happened to be his son. The suit was dismissed and an appeal against judgment and decree of the trial Court is pending; that actual partition of the disputed land had not taken place and it is being used for residential purposes; that the plaintiffs asked the defendants several times to get the joint property partitioned by metes and bounds, but to no effect. Hence, the plaintiffs brought the suit in question.

(3.) On notice, only defendant No.1 put in appearance to offered a contest. In the written statement filed by him, he had taken up various legal objections, to wit that the suit was not maintainable in the present form; that no cause of action arose to the plaintiffs to bring the suit and plaintiffs had no locus standi to file the suit and that the plaintiffs were estopped by their own act and conduct to file the suit. On merits, such defendant contended that Ranpat, father of the plaintiffs and defendants No. 1 to 3 i.e. predecessor in interest of defendants No. 4 to 12 and Dholu @ Bholu, predecessor in interest of defendants no. 13 to 20, had been joint owners in possession in equal shares i.e. 1/3rd share each. All of them had partitioned the suit property in equal shares and thereafter, Amrit constructed his house over the land measuring 1200 sq. yards. Legal heirs of Dholu @ Bholu also constructed their gher over the land measuring 1200 sq. yards and the remaining land about 2 kanals came to the share of abovesaid Ranpat, who also constructed his gher over that plot. Subsequently, on a family settlement having arrived at between said Ranpat alongwith defendant No.1 and plaintiff No.1 and by virtue of said oral family settlement the land which fell to the share of the said Ranpat in partition was given to defendant No.1 and plaintiff No.1 was given an ancestral house situated in old abadi; that after the above mentioned family settlement defendant No.1 constructed his house over the gher consisting of five pucca rooms, kitchen, bathroom and shed etc. by incurring huge amount from his own earnings and defendant No.1 alongwith his family members have been residing therein since long; that the plaintiffs as well as defendants No. 2 to 20 have got no right, title or concern therewith; that the oral family partition was not reflected in the revenue record, due to that reason the disputed property is still shown to be joint between the owners; that the plaintiffs have been acknowledging the proprietary and possessory rights of defendant No.1 over the house constructed over an area of 1200 sq. yards, which is part of Khasra No. 84/22 and it fell to the share of Ranpat and later in further family settlement it came to defendant No.1, who has constructed his own house over there using his own funds; that plaintiff No.1 was given ancestral house situated in old Lal Dora; that said Ranpat during his lifetime had filed a civil suit for permanent injunction against defendant No.1 with respect to the above mentioned land and during the pendency of that civil suit, the said Ranpat died and the plaintiffs as well as the defendants No. 2 and 3 were impleaded as LRs of deceased Ranpat and the said civil suit was dismissed vide judgment and decree dated 13.2.2007 and defendant No.1 was held to be in exclusive possession, as absolute owner of the suit house. Such defendant prayed for dismissal of the suit.