SURINDER KUMAR CHONA Vs. VIJAY SINGH JANDROTIA

JUDGEMENT

(1.) This is a regular second appeal filed by the appellant/defendant under Section 100 of the CPC against the judgment and decree, dated 5.1.2001, passed by the learned District Judge, Chamba, vide which he affirmed the judgment and decree of the learned Sub Judge, Chamba, dated 29.8.2000, decreeing the suit of the respondent/plaintiffs.

(2.) Briefly stated, the facts of the case, as alleged by the plaintiffs, are that late Radha Devi was recorded as owner of khasra numbers, as detailed in the plaint, measuring 490 square yards and 7 square feet, in Mohalla Jansali, Chamba Town. Late Radha Devi had succeeded late Shri Raghbar Dyal and at that time two daughters, namely, Smt.Shakuntla Devi and Smt.Leela Devi, since deceased, were born and alive. It was alleged that on the death of Smt.Radha Devi, a dispute arose between the parties when the defendant Surinder Kumar Chona claimed himself to be the owner in possession on the basis of a Will executed by Radha Devi in his favour. The plaintiffs filed a suit against the defendant and the plaintiffs were declared owners by all the courts including this Court. Plaintiff No.1 was declared owner to the extent of one half share and plaintiffs No.2 to 7 and Surinder Kumar, defendant, were declared owners to the extent of one half share of the total land i.e. plaintiff No.1 was declared owner of 7 shares out of 14 shares and plaintiffs No.2 to 7 as owners to the extent of 6/14 shares and defendant Suridner Kumar to the extent of 1/14 share in the suit property. The plaintiffs thereafter filed execution and the parties have been recorded as owners in possession to the extent of their share.

(3.) It was further alleged that the defendant was requested to partition the property as declared by the courts, but the defendant was not willing to do so. The name of Daulat Ram and one Shyam Sunder were mentioned in the column of ˜Kafiat -, but they were no longer in occupation of the same and correction to that effect has been made vide mutation No.3756 and therefore, they have not been made a party to the suit. Thus, it was prayed that a decree for possession of 13/14 shares in the joint property referred above by partition be passed in favour of the plaintiffs.