CHANDERMANI Vs. MIA DITTA AND OTHERS

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 53 of 2005 dated 01.06.2006, vide which, learned Appellate Court partially modified the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, in Civil Suit No. 312 of 2000 dated 31.03.2005, whereby learned trial Court had decreed the suit of the plaintiffs to the extent that the suit land was held to be joint Hindu family and coparcenary property of the plaintiffs and the sale deeds dated 22.08.2000 qua the suit land by Sawaru in favour of defendants No. 1 and 2 were held to be wrong, null and void and the plaintiffs alongwith defendant No. 4 were held to be joint owner in possession of the suit land.

(2.) Brief facts necessary for adjudication of the present appeal are that respondents/plaintiffs, hereinafter referred to as the plaintiffs, filed a suit for declaration with confirmation of joint possession as well as for injunction on the ground that the land comprised in Khewat/Khatauni No. 87/132, bearing Khasra Nos. 585, 601, 605, 615, 645, 647, 651, Kitas 7, measuring 11-18-17 bighas and ½ share of land comprised in Khewat/Khatauni No. 88/133, Khasra Nos. 592, 674, Kitas 2, measuring 0-10-19 bigha, situated at Mouja Kandi, Tehsil Chachiot, District Mandi, H.P., was recorded in the ownership and possession of defendant No. 3 as per revenue record for the year 1996-97 and said entry which reflected defendant No. 3 as exclusive owner in possession of the suit land was wrong, null and void. As per the plaintiffs, land comprised in Khewat/Khatauni No. 56min/107, bearing Khasra Nos. 1107 and 1112, measuring 2-19-5 bighas and ½ share of the land comprised in Khewat/ Khatauni No. 115/228, bearing Khasra Nos. 1110 and 1117 measuring 0- 14-19 bighas, situated at Mouja Sarua, Tehsil Chachiot, District Mandi, H.P., was also recorded in the ownership and possession of defendant No. 2 as per jamabandi for the year 1989-90 and the said entries were also wrong, null and void. As per the plaintiffs, parties to the suit were Hindu by religion and the suit property as mentioned in Para-1(a) of the plaint was joint Hindu coparcenary property of plaintiffs, defendants No. 3 and 4. Plaintiffs and defendant No. 4 were real brothers, whereas defendant No. 3 was their father. The suit land was joint Hindu family coparcenary property of plaintiffs and defendants No. 3 and 4 as the same had been inherited from common ancestor late Dayalu and all the coparceners had acquired right in this property by virtue of their birth. It was further the case of the plaintiffs that the land described in Para-1(b) of the plaint was also joint Hindu family coparcenary property as previously it was in the tenancy of late Dayalu, father of Sawaru, defendant No. 3 and later on it came in the hands of defendant No. 3 as well as other members of the family but Sawaru never exercised his independent dominion over the same and the same was thrown in joint nucleus of the coparceners and the land was enjoyed by all the coparceners commonly by treating it as joint Hindu family property. It was further the case of the plaintiffs that Sawaru (defendant No. 3) was 90 years old, rustic villager, who on account of his old age could not analyze his good and bad and defendants No. 1 and 2, who were sons of defendant No. 4, in connivance with defendant No. 4 and one Sobha Ram got manipulated sale deeds qua Khasra Nos. 585, 601, 615 and 651 measuring 7-11-12 bighas out of the land described in Para-1(a) of the plaint and ½ share of Khasra Nos. 1107 and 1112 measuring 2-19-5 bighas as described in Para-1(b) of the plaint from defendant No. 3 by taking the benefit of wrong revenue entries, on 22.08.2000 which sale deeds were wrong, null and void and not binding on the plaintiffs. As per the plaintiffs, sale deeds were also wrong, null and void on the ground that defendant No. 3 was having no right, title and interest to sell this property nor there was any legal necessity for which the alleged sale deeds were executed. It was on these basis that the suit was filed by the plaintiffs praying for the following reliefs:-

(3.) The suit was contested by the defendants, who in their written statement denied the factum of the suit property being joint Hindu family coparcanary property of the plaintiffs. According to the defendants, plaintiffs did not constitute joint Hindu family with the defendants. The case put up by the defendants was that the property was not inherited from common ancestor, Dayalu as alleged and the plaintiffs had not acquired any interest in the suit land by virtue of birth. As per defendants, suit land described in Para-1(a) of the plaint was self acquired property of defendant No. 3 who had acquired the same with his own money and the suit property as described in Para-1(b) of the plaint was in possession of defendant No. 3 as tenant and later on, he was conferred the proprietary rights over the same. It was further mentioned in the written statement that the sale deeds were not manipulated by the defendants in connivance with Sobha Ram as alleged. It was also mentioned in the written statement that the plaintiffs in fact never considered defendant No. 3 as their father and they never looked after him and they had refused to manage day-to-day living of defendant No. 3 and said defendant was residing separately from the plaintiffs for the last many years and in order to meet his bonafide requirements he had incurred debts from different persons and amount was required by defendant No. 3 for his day-today expenses in order to keep him alive.