SARINDRO DEVI Vs. DESH RAJ

JUDGEMENT

(1.) The appellants are the successors-in-interest of the defendant No.1, who have lost in both the Courts below.

(2.) The plaintiff-respondent filed a suit for dec laration to the effect that he along with defendant No.1 was co-owner in equal shares of the house/shop as per the site plan attached and comprised in Khata No.167min, Khatauni No.247, Khasra No.971/963, area measuring 1 kanal 5 marlas, situate in Ti ka Lamblu, Tappa Ugialta, Tehsil and District Hamirpur, H.P. and the mortgage effected by the defendant No.1 in favour of the defendant No.2 regarding the share of the plaintiff on 09.10.1987 was null and void and not binding on the plaintiff. The plaintiff also claimed the relief of permanent prohibitory injunction restraining the defendants from changing the nature of the suit land or alienating the share of the plaintiff in the suit property in dispute or from raising construction in the joint land. It was alleged that the property had been purchased by their father Thakur Dass in the year 1972. In 1979-80 and 1980-81 the old construction standing on the land was demolished and the present construction was raised by the father of the parties. Thakur Dass died on 26.02.1989 and thereafter the defendant No.1 started grabbing the whole property in dispute and mortgaged the same with the defendant No.2 on 09.10.1987 for a consideration of Rs. 65,000/-. Since the defendant No.1 had no right to mortgage even the share of the plaintiff to defendant No.2, hence a legal notice was served upon the defendant No.2 and since the defendants were not admitting the claim of the plaintiff, therefore, the suit.

(3.) The defendant No.1 contested the suit by filing written statement wherein preliminary objections regarding valuation and estoppel were raised. On merits, it was contended that the property in dispute was purchased by him alone, though the name of the plaintiff was also entered in the sale deed. He alleged that after demolition of the original structure, a new construction was raised by him alone by spending huge amount and at that time no objection whatsoever was raised by the plaintiff. He denied that any construction was raised by the plaintiff or the father of the plaintiff. Regarding mortgage, it was alleged that since defendant No.1 was the absolute owner in possession of the property in dispute, he had rightly mortgaged the same with the defendant No.2.