ISHWARI PRASHAD Vs. KULDEEP KUMAR AND ORS.

JUDGEMENT

(1.) This Regular Second Appeal has been filed by defendant-appellant Ishwari Parshad against the judgment and decree dated 10.3.2005 passed by the District Judge, whereby the judgment and decree passed by the trial Court were modified in terms of the alleged compromise.

(2.) The facts which are relevant for the decision of the present appeal are that Kuldeep Kumar etc. plantiffs had filed suit for permanent prohibitory injunction and also for mandatory injunction against the defendants including defendant No. 1 Ishwari Parshad (father of the plaintiffs). In the written statement, the defendants contested the suit. It was denied that the plaintiffs were the son and daughter of defendant No. 1, alleging therein that the mother of the plaintiffs had left defendant No. 1 about 40 years back and was residing with her parents and the mother of the plaintiffs had given birth to the plaintiffs at her parents house, even though defendant No. 1 had not visited her nor she had joined him for the last 40 years. It was alleged that the plaintiffs being not son and daughter of defendant No. 1 were not entitled to claim any share in the suit property. It was also denied that the suit property was ancestral.

(3.) After hearing both sides and perusing the record, the learned trial Court decreed the suit of the plaintiffs restraining the defendants from raising any construction or to dismantle the old house over the suit property till the plaintiffs were provided a share in the suit property. While decreeing the suit of the plaintiffs, it was held by the learned trial Court that the plaintiffs had taken birth during the subsistence of the marriage of their mother with defendant No. 1 and as such, they were proved to be the son and daughter of defendant No. 1 and since the suit property was proved to be ancestral property, they had a share in the suit property.