HANS RAJ & OTHERS Vs. GHURKO

JUDGEMENT

(1.) By way of this appeal challenge has been made to the judgment and decree passed by the Court of learned Addl. District Judge (1) Kangra at Dharamshala in Civil Appeal No. 108-N/2001 dated 2.7.2004, vide which learned appellate court while dismissing the appeal filed by present appellant upheld the judgment and decree passed by the Court of learned Sub Judge (II), Nurpur, Distt. Kangra in Civil Suit No. 273 of 1993 dated 29.8.2001, whereby learned trial court had dismissed the suit filed by present appellant seeking declaration to the effect that he along with other co-sharers was owner in exclusive possession of the suit land and was entitled to remain as such in future also and that gift deed dated 25.5.1992 in favour of defendant was illegal, null and void.

(2.) Brief facts necessary for adjudication of the present case are that plaintiff-Biru filed a suit for declaration that he was owner in exclusive possession of half share of suit land comprised in Khata No.1 min, Khatauni No.1, Khasra Nos. 5, 6, 7, 9, 90, 147, 148, 149, 150, 153, 154, 155, 156, 157, 158, 161, 162, 163, 164, 171/1, 172,182 measuring 2-76-00 HM, i.e. 1.38.00 HM situated in Tika Sugh Tarkhana Mauza Madoli, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred at as 'suit land'). According to him, he had executed a conditional gift deed in favour of the defendant in lieu of his rendering past and future services but after execution of gift, defendant stopped rendering services to him and accordingly plaintiff did not deliver possession of the suit land to the defendant. As per the plaintiff few days after execution of the gift deed defendant started maltreating him and also tortured him. It was the case of the plaintiff that gift deed dated 25.5.1992 was never acted upon and the land remained in exclusive possession of the plaintiff and other co-sharers. As per him, defendant had threatened to dispossess him from the suit land in the garb of gift deed as well as Mutation No. 15 dated 29.5.1992 and in these circumstances he had filed the suit praying for following relief:-

(3.) Suit was contested by defendant who took the stand that plaintiff was neither in possession of the suit land nor he was its owner as he had executed a gift deed qua the suit land in favour of defendant in lieu of services which were rendered by defendant to the plaintiff and the said gift deed was duly registered as per provisions of law and thereafter mutation was also decided on the basis of said registered gift deed on 25.9.1992 in favour of defendant. It was further mentioned in the written statement by way of preliminary objections that the suit of the plaintiff was barred under the provisions of Order 9 Rule 8 of the CPC as well as under Order 9 Rule 9 of the same as plaintiff had earlier also filed a suit on the same cause titled Biru Vs. Ghurco i.e. Civil Suit No. 211/1993 in the Court of learned Sub Judge 1st Class, Dharamshala which was later on transferred to the Court of learned Sub Judge 1st Class, Nurpur and the said suit stood dismissed in default as well as for want of prosecution on 15.2.1996. It was further mentioned in the written statement that plaintiff was real maternal uncle of defendant and as he was pleased with the services of defendant and also in lieu of love and affection plaintiff had executed gift deed of the suit land in favour of the defendant which was duly registered with Sub Registrar, Nurpur. As per defendant possession of the suit land was also given to him at the time of execution of gift deed and mutation was also decided on 29.5.1992 on the basis of said gift deed. It was also denied that defendant had stopped rendering service as alleged. It was further mentioned in the written statement that the gift deed was absolute and not conditional. As per defendant he had been rendering service to the plaintiff and was still ready and willing to keep the plaintiff with him and render him all services and suit stood filed at the behest of some person who wanted to grab the property of defendant.