SHYAM SINGH Vs. PREM SINGH

JUDGEMENT

(1.) JUDGMENT : Present appeal filed against the judgment and decree passed by learned District Judge Sirmour District at Nahan HP in Civil Appeal No. 52 -CA/13 of 2001 titled Shyam Singh Vs. Prem Singh and others.

(2.) BRIEF facts of the case as pleaded are that Shyam Singh and others plaintiffs filed suit for declaration that partition order dated 4th December 1997 and the instrument of partition made in the partition case No. 60 of 1993 titled Prem Singh Vs. Shyam Singh prepared by Assistant Collector Ist Grade Paonta Sahib HP is illegal and not binding upon the plaintiffs being contrary to civil decree passed by the Civil Court in Civil Suit No. 16/1 of 1987 titled Gajey Singh Vs. Prem Singh which was decided on 23rd December, 1987. It is pleaded that as per compromise decree passed by Civil Court suit property situated in khasra No. 33, 38 and 146 measuring 42 -8 bighas and khasra No. 34 and 163 measuring 17 -12 bigha total immovable land measuring 60 bighas situated in Mauza Danda Tehsil Paonta Sahib District Sirmour HP was to be divided in equal shares between Gajey Singh, Prem Singh and Shyam Singh. It is further pleaded that it was decided in Civil Suit No. 16/1 of 1987 that 17 -12 bighas of land situated in khasra No. 34 and 163 will be clubbed together with the land measuring 42 -8 bighas comprised in Khasra No. 33, 38 and 144 and thereafter the land will be partitioned amongst three brothers i.e. Gajey Singh, Prem Singh and Shyam Singh in equal shares after maintaining their respective possession with regard to Abadi of the parties. It is further pleaded that revenue officials while effecting partition did not implement the decree passed by Civil Court on 23rd December 1987 in Civil Suit No. 16/1 of 1987 and prayer for grant of decree as mentioned in relief clause of the plaint sought.

(3.) PER contra Rattan Singh defendant No. 2 filed written statement pleaded therein that jurisdiction of Civil Court is specifically barred under Section 171 of the HP Land Revenue Act qua partition proceedings. It is further pleaded that plaintiffs have no cause of action to file present suit. It is further pleaded that decree passed on dated 23rd December 1987 in Civil Suit No. 16/1 of 1987 is not binding upon the rights of defendant No. 2. It is further pleaded that grand father of defendant No. 2 was the owner of the suit land and he had three sons namely Shyam Singh plaintiff No. 1, Gajey Singh the father of plaintiff No. 2 to 9 and Prem Singh defendant No. 1. It is further pleaded that mother of defendant No. 2 died when defendant No. 2 was three months old. It is further pleaded that father of defendant No. 2 re -married and left defendant No. 2 with his grand father. It is further pleaded that defendant No. 2 was brought up by his grand father. It is further pleaded that all the three sons were living separately from their father. It is further pleaded that grand father of defendant No. 2 had given 2 -17 bigha of land out of khasra No. 33 in the year 1973 to defendant No. 2 and divided the remaining land among three sons. It is further pleaded that after the death of grand father defendant No. 2 constructed a residential house consisting of five rooms value of which is more than Rs. 3,00,000/ - (Three lacs). It is further pleaded that defendant No. 2 has also planted two mango trees over suit property. It is further pleaded that in case title of the defendant No. 2 on the basis of permanent grant in the family settlement is found defective then in alternative defendant No. 2 became owner of the suit property by way of adverse possession as defendant No. 2 is in possession of the said land openly and peacefully as owner to the knowledge of true owner. Prayer for dismissal of suit sought.