SURAT RAM Vs. ASHA RAM

JUDGEMENT

(1.) This Revision Petition arises out of civil suit No. 123/1 of 1981 which has been instituted by the present respondent Asha Rani against the present petitioners and is presently pending in the court of the Sub -Judge, Nalagarh. The facts and circumstances which obliged the petitioners (original defendants) to approach this Court may. first be narrated.

(2.) The petitioners and the respondent are brothers, being the sons of the same father, Shri Nanak Chand, though from his different wives. The petitioners are from the first wife while the respondent is from the second wife of Shri Nanak Chand. Shri Nanak Chand died intestate in Sambat 1985 corresponding to 1928 AD. He left behind the petitioners and the respondent as his only legal heirs. According to the case of the plaintiff -respondent, Shri Nanak Chand at the time of his death owned land which measures 63 Bighas 16 Biswas in lieu of which the land in suit measuring 61 Bighas 9 Biswas, as detailed in the heading of the plaint was allotted during the settlement and consolidation proceedings which took place after the death of Shri Nanak Chand. The plaintiff wanted to get his l/3r -d share in this land separated. He accordingly applied to the Revenue Officer for partition. The defendants, that is, the present petitioners opposed that prayer of the plaintiff for partition on the plea that the plaintiff had no title to any part of the suit land. Since the question of title was raised in the partition proceedings, the Revenue Officer directed the plaintiff to get his title established in a civil court of competent jurisdiction.. This made the plaintiff to institute his suit out of which the present proceedings arise. The plaintiff in his suit had claimed a declaration to the effect that he was a co -sharer or co -owner in possession to the extent of l/3rd share in the land referred to above and that the defendants had no right to deny his title or to prevent the plaintiff from getting his l/3?;d share partitioned.

(3.) The petitioner -defendants in their written statement, inter alia, pleaded that the total estate left by their father, Shri Nanak Chand, comprised of an area of 95 Bighas 16 Biswas as detailed in para 5 (ii) of their written statement and not 63 Bighas 16 Biswas as claimed in the plaint. In lieu of the aforesaid land left behind by Shri Nanak Chand, land measuring 95 Bighas 14 Biswas as detailed in para 6 of the written statement had been allotted during the consolidation proceedings. The main plea of the defendants was that after the death of their father there had been some arrangement inter se parties in terms on which out of the estate of their father, land measuring 34 Bighas 5 Biswas at detailed in para 6 (i) fell to the share of the plaintiff while the remaining land measuring 61 Bigha 95 Biswas forming subject -matter of the suit fell to the share of the defendants. In addition to the various pleas raised by them in dependance of the suit, the defendants raised certain pleas by way of counterclaim on the basis of which they prayed for a decree of declaration to the effect that they were co -owner/co -sharers to the extent of 2/3rd share in the land measuring 35 Bighas 14 Biswas as detailed in para 6 (ii) of their written statement.