JASWANT SINGH Vs. HANS RAJ

JUDGEMENT

(1.) The dispute in this second appeal relates to 1-1/2 Biswas of land within the Abadi of village Talwandi Kalan. Undisputeably this piece of land and another 17 Biswas lying outside the Abadi of that village was owned by Lachhman Singh and on his death it came to his five sons and five daughters by succession. Daughters were married in other villages and three of the sons were out of the village and only Jeet Singh and Rur Singh, the other two sons, were in the village and were in occupation of 1-1/2 Biswas, the site in dispute. By registered sale deed dated 14-1-1974, they sold the entire 1-1/2 Biswas, the land in dispute to Hans Raj and delivered. possession to him. Thereafter, on 22-7-1974, another son and three daughters of Lachhman Singh sold one Biswa out of the aforesaid land to Amar Singh by a registered document. Amar Singh had land on the northern and Western side of the site in dispute. Hans Raj filed a suit against Amar Singh for permanent injunction to restrain him from encroaching on 1-1/2 Biswas of land which he had purchased, the plea that he was in possession as owner thereof, by virtue of the sale deed mentioned above Amar Singh contested the suit and on the basis of the sale deed in his favour from other four co-sharers pleaded ownership and possession of one Biswa out of the land in dispute.

(2.) On behalf of the plaintiff, evidence was sought to be led that between five sons and five daughters of Lachhman Singh, there was partition and in that partition, 1-1/2 Biswas, the land in dispute, fell to the share of the vendors of the plaintiff and the remaining land which was outside the Abadi, fell to the share of other co-sharers but both the Courts below did not accept the same. The resultant effect should have been that all the ten children of Lachhman Singh became co-sharers on his death in the land in dispute and 17 Biswas of land lying outside the Abadi and such a declaration should have been given and at the same time the possession of the plaintiff on the land in dispute could be protected as a co-sharer by granting a decree of injunction subject to the partition between the co-sharers. Instead of doing this, both the Courts below held that in total land, i.e 17 Biswas, 1-1/2 Biswas, the vendors of the plaintiff had at least 1-1/2 Biswas and the sale of the land in dispute by them to the plaintiff was not beyond their share and declared the plaintiff to be exclusive owner of the land in dispute and decreed the suit on this basis.

(3.) Defendant had died before (sic) the lower appellate Court and his legal representatives, who were brought on record there, have come to this. Court in second appeal.