SURINDER SINGH Vs. NARINDER SINGH AND OTHERS

JUDGEMENT

(1.) The plaintiff is the appellant, who after having lost before both the learned Courts, has filed the instant appeal. The parties hereinafter shall be referred to as the 'plaintiff' and the 'defendants'.

(2.) The plaintiff filed a suit for declaration against defendants No.1 to 3 that he is owner in possession of land comprised in Khata No. 81, Khatauni No. 131, Khasra No.200/65, measuring 100-16 Bighas, sitaute in Village Palhori, Tehsil Paonta Sahib, District Sirmaur. Munshi Khan, defendant No.4, is a tenant on land measuring 26-4 bighas, comprised in Khasra No. 200/65/1 under plaintiff and entry showing defendants No.2 and 3 as co-owners qua the suit land is illegal, wrong and void. The case of the plaintiff is that he and defendant No.1 are real brothers. The father of the plaintiff and defendant No.1, Shri Harpal Singh had share in the property and other share was that of their uncle Shri Jai Pal Singh. Their father sold his share for a sum of Rs.13,000.00 out of Khasra No. 28, Khatauni Nos. 92 to 108 to the extent of 308.19 bighas out of 617.19 bighas to one Shri Balbir Singh, Khasra No. 65 measuring 254.12 bighas was also included in the said sale.

(3.) It was averred that plaintiff and defendant No.1 were minors at the time of said sale. Narinder Singh defendant No.1 through Nathu Ram filed a suit for pre-emption against Balbir Singh and Harpal Singh challenging the sale and suit was decreed on 3.7.1970. It was further averred that plaintiff was not impleaded as coowner in that suit through the said suit was filed on behalf of the plaintiff and defendant No.1 and in these circumstances, the plaintiff could not figure in that suit. In order to rectify this defect, the plaintiff filed a Civil Suit No.104/1 of 1975 in the Court of learned Senior Sub Judge, Nahan, titled as 'Surinder Singh versus Narinder Singh', wherein it was claimed that the earlier decree dated 03.08.1970 was fraudulent. This suit was decreed on 25.10.1978 and plaintiff got share in the land, which was sold to Balbir Singh. The plaintiff and defendant No.1 thus became owner in possession of that land. It was also averred that the share of plaintiff No.1 exceeded the limit of ceiling under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. On the strength of decree dated 25.10.1978, the plaintiff and defendant No.1 were entitled to exemption and, therefore, a family settlement was arrived at between them whereby defendant No.1 gave up the suit land in favour of the plaintiff and as such the plaintiff became owner of Khasra No. 200/65, measuring 100-16 bighas. A memorandum was executed in this respect in between plaintiff and defendant No.1, which was given to defendant No.1 for attestation of mutation.