SUMAN CHOPRA Vs. BRIJ MOHAN & ORS

JUDGEMENT

(1.) Present regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 1.11.2006, passed by the learned District Judge, Mandi, HP, in Civil Appeal No. 39 of 2005, affirming the judgment and decree dated 7.3.2005, passed by learned Civil Judge (Junior Division), Jogindernagar, District Mandi, H.P. in Civil Suit No. 72 of 1998, whereby the suit filed by the appellant-plaintiff for partition under Section 41 of Indian Partition Act has been dismissed.

(2.) The key facts as emerge from the pleadings/records are that appellant-plaintiff (hereinafter referred to as the plaintiff) instituted a suit for partition under Section 4 of the Indian Partition Act averring therein that land comprised of khata khatauni No. 24/63 khasra No 1197 and 1198 measuring 741.08 square meters, khata khatauni Nos. 1197/1, 1199/1200 and 1201 measuring 859.03 sq.meter and khata khatauni No.25/65 khasra No. 2652/718, measuring 138/02 sq. meters situated at Jogindernagar , H.B. 396, Ilaqua Jeetpur, Tehsil Jogindernagar, District Mandi, HP (in short suit property) was previously jointly owned in possessed by S/Shri Mangat Ram, Roshan Lal Puri and Prakash Chand defendant No. 7 to the extent of 1/3rd share each. As per averments contained in the plaint filed by the present appellant/plaintiff, after the expiry of Mangat Ram, his 1/3rd Share was inherited by defendant Nos. 1 to 6 being sons and daughters and widow, whereas Roshan Lal died leaving behind the appellant/plaintiff and proforma defendants No. 9 and 10 and they being LRs of Roshan Lal succeeded to his 1/3rd share. Plaintiff also claimed that property as mentioned above is still joint and un-partitioned and all the parties are jointly enjoying and possessing the same. As per averments contained in the plaint, plaintiff claimed that share of defendants No. 1 to 6 out of suit land is 1/3rd and that of defendant No. 7 is also 1/3rd. It is also averred in plaint that plaintiff and proforma defendants have 1/3rd share, whereas in the property, defendants No. 1 to 6 have 1/4th share, defendants No.7, plaintiff and proforma respondents have also1/4th share, which is duly effected/reflected in jamabandi annexed with the plaint. The plaintiff specifically averred in the plaint that property comprised in khata khatauni No. 24/64 khasra Nos. 197/1, 1199, 1200 and 1201 measuring 859.03 sq.meters is recorded under the ownership of her father namely late Sh. Roshan Lal Purti, defendant No. 7, defendants No. 1 to 6 and one Mr. Nazam Din, Jalhe, Bhadar, Mehtab Din, sons of Bhekhu Momammadans as occupancy tenants and in possession of the owners. The plaintiff claimed that these persons have migrated from Pakistan somewhere in 1949-50 and since then property is in the possession of the owners. Description of the property given in the plaint suggests that whole property is situated within the limits of Municipal Committee, Jogindernagar, District Mandi, HP. The plaintiff by way of suit referred herein above, claimed that the property is still joint and un-partitioned and some co-sharers are in joint enjoyment of the possession in excess of their recorded share. Plaintiff repeatedly requested the defendants to get the share separated but in vain, hence, she was compelled to file present suit for partition under Section 4 of Indian Partition Act.

(3.) Defendants No. 1 to 6, 9 and 10 filed joint written statement, specifically taking therein preliminary objection qua the maintainability, locus standi and mis-joinder of necessary parties etc. Defendants specifically alleged that plaintiff is not co-sharer in the joint possession over the suit property and as such, she cannot be allowed to institute/maintain the present suit claiming partition of the property by meets and bonds. Defendants specifically stated in the written statement that late Roshan Lal predecessor-in-interest of plaintiff and defendants No. 9 and 10 executed a Will of his entire share in the suit property in favour of his daughter defendant No.10 namely Geetika Puri on 6.9.1996. Mangat Ram, Parkash Chand and Roshan Lal got separated their share in the suit property in the year, 1970. Defendants also claimed that house was also partitioned by meets and bonds, wherein four rooms fell in the share of each of the aforesaid three persons. Defendants claimed that property was partitioned by way of family partition. Defendants No. 1 to 6 and 9 & 10 specifically stated that share of late Roshan Lal is in possession of defendant No. 10, who is his sole successor-in-interest. Similarly, defendant Nos. 1 to 6 claimed that they are in possession of their share as far as suit property i.e. Khata khatauni No. 25/65 khasra No. 2652/718 measuring 138.02 sq.meters is concerned, same was in possession of Mangat Ram Puri predecessor-in-interest of defendants No. 1 to 6 along with his father Babu Ram and after the death of Babu Ram in the year, 1982 Mangat entered into its possession. It is also stated in the written statement that litigation pertaining to partition of suit property was also contested by the Mangat Ram Puri against the State of Himachal Pradesh, whereas defendants No. 1 to 6 claimed to have become owner of the suit property on the basis of adverse possession. Defendants specifically averred that Will has duly been executed by Roshan Lal in favour of defendant No. 10, who was hale and hearty and was not suffering from any mental incapability or ill health at the time of execution of will. The aforesaid defendants also stated that Roshan Lal was having sound health except a mild stroke of paralysis which he had suffered few years back. Defendants have also stated that Roshan Lal was a dedicated person and used to perform his every work of his daily routine. Similarly, defendants No. 7 and 8 filed separate written statement, wherein they admitted the claim of the plaintiff and stated that, it would be in the interest of parties, if the suit property is partitioned by meets and bonds. Records further suggests that plaintiff filed replication to the written statement filed by defendants No. 1 to 6, 9 and 10 refuting the averments contained in the written statement, while re-asserting the averments made in the plaint. The Learned Court below on the basis of pleadings of the parties framed following issues:-