NIRMALA Vs. HARI SINGH

JUDGEMENT

(1.) This second appeal, under S. 100 of the Code of Civil Procedure, arises out of the judgment and decree of the learned Additional District Judge (I) Shimla dated September 18, 1993.

(2.) In order to appreciate the controversy, the facts, in brief, may be notice :One Sh. Jawala Dass was owner in possession of the landed property, including suit property, comprised in khasra numbers 82 and 83 along with two houses situate thereon, situate in mauza Seehpur of Tehsil and District Shimla. Jawala Dass died on February 28, 1972. He was succeeded by his widow Hem Dassi, son Devi Saran and daughter Ram Kali. Devi Saran also died immediately thereafter and was succeeded by his widow Reshmu Devi. Hem Dassi (widow of Jawala Dass) gifted her 1/3rd share in the properties left by Jawala Dass, including the suit property, to defendant Nirmala. Thus, Nirmala, Ram Kali and Reshmu became owners in possession of the property of Jawala Dass including the suit property to the extent of 1/3rd share each. In the year 1974, Reshmu Devi and Ram Kali gifted their respective shares in the property left by Jawala Dass, (including the suit property) in favour of Hari Sinha Plaintiff. The plaintiff and defendant, thus, became joint owners in possession of the suit property. The plaintiff became owner to the extent of 2/3rd share and the defendant in respect of other 1/3rd share.

(3.) In the year 1985, plaintiff filed a suit for injunction seeking a restrain on the defendant from demolishing the two houses located on khasra numbers 82 and 83 (suit property). The defendant in an application under Order 39 rules 1 and 2, C.P.C. was restrained from demolishing these two houses during the pendency of the suit. The suit was, however, dismissed in default in August 6, 1985. Hari Singh plaintiff moved an application for restoration of the suit which was allowed. However in the integrum, it is alleged, defendant demolished the houses and in its place raised two new houses. In these circumstances, the plaintiff withdrew the suit for injunction and filed the present suit.