INDERJIT SINGH Vs. OMKAR SINGH

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Sirmour district at Nahan on 14.12.2001 in Civil Appeal No. 36-CA/13 of 2000.

(2.) Material facts necessary for adjudication of this regular second appeal are that the Plaintiffs/appellants (hereinafter referred to as "plaintiffs" for convenience sake) had filed a suit for declaration before the learned Sub-Judge 1st Class, Paonta Sahib to the effect that they are entitled to get their share in the land comprised in Khewat No. 46, Khatauni No. 104, Khasra Nos. 266/82, 311/102, 313/102, 166, 182, 80, 181 and 182 measuring 70 bighas 4 biswas situate in Mauja Behral, Tehsil Paonta Sahib, District Sirmour (hereinafter referred to as the suit land for brevity) partitioned. The suit land was stated to be owned by one Shri Ishwar Singh, who constituted joint Hindu Family with his son Omkar Singh, Respondent No. 1/defendant No. 1 (hereinafter referred to as "defendant No. 1" for convenience sake) and after his death it devolved upon his son Omkar Singh. The Plaintiffs claim to be coparceners in the suit land being the sons of Respondent No. 3/defendant No. 2, Harmail Singh (as per plaint) (hereinafter referred to as "defendant No. 2" for convenience sake) and grand-sons of Defendant No. 1. According to the Plaintiffs, they separated in mess about 12-15 years back and land measuring 7 bighas was given to Defendant No. 2 in the family partition which is now in the joint cultivation and possession of Plaintiffs and Defendant No. 2. According to the Plaintiffs, Defendant Nos. 1 to 6 were entitled to get l/6th share each and Plaintiffs were entitled to l/24th share each in the suit land. They have prayed that the suit land be partitioned by allotting 1/24th share each to the Plaintiffs. Defendants No. 1 and 3 to 6 filed a joint written statement contesting the claim of the Plaintiffs. It was averred that Defendant No. 2 had filed a suit against Defendant No. 1, which was got compromised in Lok Adalat on 21.11.1993 and Harmail Singh was given 6 bighas of land by his father, Defendant No. 1. The same was cultivated by Defendant No. 2 and the Plaintiffs. The Defendants denied the suit land to be joint Hindu Family coparcenaries property. According to them, the suit land was inherited from Ishwar Singh and Defendant No. 7 (since deceased), who are the joint owners in possession of the land. They denied that 7 bighas of land was allotted to Defendant No. 1 in family partition. Defendant No. 7 had also contested the suit by filing separate written statement. The Plaintiffs have filed replication and the issues were framed by the trial Court on 7.10.1998. The trial Court dismissed the suit on 30.12.1999. The Plaintiffs preferred an appeal before the learned District Judge on 16.2.2000 against the judgment and decree dated 30.12.1999 passed by the trial Court. The learned District Judge partly allowed the appeal 14.12.2001 and the judgment and decree dated 30.12.1999 of the trial Court was set aside and the suit was decreed to the effect that the Plaintiffs are joint owners in possession to the extent of 1/48 share in the suit land. A preliminary decree was directed to be prepared. This regular second appeal has been preferred against the judgment and decree dated 14.12.2001 passed by the learned District Judge in Civil Appeal No. 36-CA/13 of 2000.

(3.) Mr. Bhupender Gupta, learned Senior Advocate for the Appellants has strenuously argued that the suit of the Plaintiff was required to be decreed in its entirety. His further contention is that the learned District Judge has come to the wrong conclusion that Defendant No. 7 Sadhu Singh (since deceased) was the son of Shri Ishwar Singh.