LAWS(HPH)-2019-11-241

AMARJEET SINGH Vs. RAJENDER SINGH AND OTHERS

Decided On November 19, 2019
AMARJEET SINGH Appellant
V/S
Rajender Singh And Others Respondents

JUDGEMENT

(1.) The defendant is the appellant, who aggrieved by the judgment and decree passed by the learned Courts below, has filed the instant appeal. The parties shall be referred to as the 'plaintiff' and the 'defendant'.

(2.) Brief facts of the case are that the plaintiff filed a suit for declaration and partition of the property comprised in Khasra Nos. 1386 to Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 1388, area measuring 74.83 Sq. Mtrs., situated in Ward No.8, Near Gita Bhawan, Tehsil Paonta Sahib, District Sirmaur, H.P. (hereinafter referred to as the suit property.) against the defendant and proforma respondents for declaring the share of the plaintiff as 1/7th over the same. It was averred by the plaintiff that late Sh. Gurmukh Singh had four sons and three daughters. Sh. Gurmukh Singh and Jagat Singh had purchased land comprised in Khata Khatauni No.69, Khasra No. 164, measuring 03 biswas vide sale deed dated 05.02.1954 from Durga Dutt, Vendor for a consideration of Rs.1000/-. Thereafter both the vendee's mutually partitioned the land so purchased by them as per their shares and raised construction of permanent nature being the ground floor. After the death of Gurmukh Singh, this property came to be inherited by the plaintiff, defendant No.1 and proforma defendants No.2 to 5 and later Smt. Motia Rani being his children in equal shares. Smt. Motia Rani had also expired and was succeeded by proforma defendants No.6 to 10. It was averred that in this manner the share of the plaintiff and his brothers and sisters comes to 1/7th each respectively being 7 in numbers. Gurmukh Singh had raised a ground floor during his life time consisting of three shops, a room, toilet, passage etc and after his death, two floors were jointly constructed by the plaintiff, defendant No.1 and proforma defendants. The profits of the property were also shared by all among them. In January, 2005, when the plaintiff asked defendant No.1, who is in possession of the property more than his share, to partition the same by metes and bounds amongst all the co-sharers, he assured the plaintiff and proforma- defendants that partition shall be done shortly after necessary revenue record are collected. In April, 2005 when further inquiry was made from defendant No.1, he gave unsatisfactory reply and the plaintiff approached the local Patwari to collect the revenue papers and was surprised to know that defendant No.1 during settlement operation in the town of Paonta Sahib, has connived with the officials of settlement department and got his name exclusively incorporated in the column of ownership, which revenue record was fraudulently prepared by ignoring other legal heirs of deceased Gurmukh Singh and the same was liable to be declared as illegal as the plaintiff and proforma defendants were never summoned by the officials of settlement department at the time of preparation of the record and mutation was also attested behind their back. It was averred that the cause of action accrued to the plaintiff and proforma defendants in the month of April, 2005 when defendant No.1 refused to partition the suit property as the defendant No.1 played fraud by causing the entries of the suit property made in his name. It was further averred that the plaintiff and proforma defendants are said to be in constructive possession of the suit property and lastly the plaintiff prayed for declaration and preliminary decree for partition.

(3.) Defendant No. 1 contested and resisted the suit by filing written statement wherein preliminary objections qua maintainability, locus standi, estoppel and valuation were taken. On merits, defendant No.1 came up with the plea that he was serving in Armed forces and used to send money to his father for purchasing land in his name. After this land was purchased, the father of defendant No.1 reported that the vendor was trying to encroach upon the suit property and a complaint was made by defendant No.1 to Deputy Commissioner and illegal encroachment was removed by the order of the Deputy Commissioner, Nahan. Defendant No.1 further took up the plea that he sought retirement from the Army and came back to Nahan and started the work of repairing of watches. It was averred that there was no sufficient accommodation at Nahan to accommodate the large family. The father of defendant No.1 instructed him to go to Paonta Sahib to start his business there and his father also allowed him to construct his house on the suit land which was purchased from the money provided by defendant No.1. It was further averred that in compliance to the instructions of his father, defendant No.1 shifted to Paonta Sahib and started his business and raised construction on the suit land step by step. Defendant No.1 claimed that he had contested various proceedings pertaining to the suit property and neither the plaintiff nor other brothers and sisters had ever resided in the building hence they have no right, title and interest in the same. Defendant No.1 further reiterated that the suit property was purchased out of the funds provided by him to his father and hence he was permitted to raise construction over the same without any objection. It was averred that the ownership of Khasra No. 155, Abadi deh land was changed vide mutation No.1600 and the settlement authorities had rightly passed the order. It was also averred that defendant No.1 reserves right for the share in the property at Nahan which belongs to his deceased father and is exclusively possessed by defendants No.1 and 2 as co-sharers. Other allegations were denied and defendant No.1 prayed for dismissal of the suit.