RAMAN KUMAR Vs. NARAIN DEV

JUDGEMENT

(1.) This Regular Second Appeal under Sec. 100 of the Code of Civil Procedure has been preferred by the appellants/defendants against the judgment and decree dtd. 15/9/2005 passed by learned District Judge, Hamirpur, H.P. in Civil Appeal No. 57 of 2003 whereby he reversed the judgment and decree passed by learned Sub Judge 1st Class (I), Hamirpur on 17/5/2003 in C.S. No. 4 of 1998.

(2.) The facts, in brief, are that Narain Dev, plainitff alongwith his mother Smt. Durgawati, plaintiff No.2 and his aunt Smt. Duarku Devi, plaintiff No.3 on 1/1/1998 had instituted a suit for possession by partition against the defendants on the allegations that he had been owner in possession of 13/24 share in the land/property described in Khata Khatauni No.88/103, Khasra No. 283 measuring 4 K - 19 M, situated in Tika Kot, Mouza Kohla, Tehsil Nadaun, District Hamirpur, H.P. It was averred that the suit property was owned and possessed by plaintiff No.3 Duarku Devi to the extent of 1/2 share. The remaining 1/2 share of the suit property was owned and possessed by the plaintiff and his brother Sh. Dharamvir in equal share. Sh. Dharamvir had died intestate on 19/11/1995. After the death of Sh. Dharamvir, his ¼ share in the suit property was to go to his two daughters, two sons, one widow (defendants No. 5 to 9) and mother, plaintiff No.2 in equal share. As against this, defendants No.5 to 9 on 28/2/1996, had got mutation No. 1286, copy Ext. P-3 of the estate of Sh. Dharamvir attested in their favour. The plaintiff alleged that mutation No. 1286 was wrong, illegal and void to the extent, the plaintiff No.2 had been deprived of her 1/6 share in the estate of her son. It was further averred that the defendants No.5 to 7 and 9 could not sell the share of plaintiff No.2 to defendant No.1. The plaintiff No.3 Smt. Duarku Devi had sold her 1/2 x 1/2 share in the suit property in favour of Smt. Kaushalya Devi and Santosh Kumari (defendant No.2). Smt. Duarku Devi had been left with ¼ share in the suit property. Smt. Kaushalya Devi had sold her share in the suit property in favour of defendant No.3 Roshan Lal and defendant No.4 Biasan Devi. It was averred that the share of plaintiffs No.1 to 3 in the suit property was 13/24. The suit property was joint and undivided and was liable to be partitioned through the process of the court. Defendant No.1 unauthorisedly and illegally had trespassed into the house of the plaintiff No.1 and had broken the lock of the house of the plaintiffs and had taken forcible possession thereof. The plaintiff No.1 had reported the matter to the local police but without any action. Defendant No.8 had also threatened to alienate the share of plaintiff No.2 in the suit property. Defendants No.1 to 4 wanted to raise construction on the best portion of the suit land and they were liable to be restrained from raising construction in the best portion of the suit land till partition by issuance of a decree of perpetual injunction.

(3.) Defendants No.1 to 3 resisted and contested the suit by filing written statement, in which preliminary objections qua maintainability, estoppel and cause of action were taken. On merits, defendants No.1 and 3 had stated that Sh. Dharamvir had been co- owner in possession of ¼ share of the suit property. Sh. Dharamvir died on 19/11/1995 and after his death, his share in the suit property had rightly been mutated in favour of defendants No.5 to 9 vide mutation No. 1286 on 28/2/1996. Plaintiff No.2 was not entitled to the state of Dharamvir or any share therein. Defendants No.5 to 7 and 9 had rightly sold their share in the suit property in favour of defendant No.1. The plaintiffs could not be said to be owners in possession of 13/24 share of the suit property. It was averred that the suit property had been privately partitioned long back. The parties had been in separate possession of built up and vacant area of the suit property. Defendant No.1 had denied having taken forcible possession of the house property of the plaintiffs. Defendants No.1 to 3 had denied having started construction in the best portion of the suit property. They prayed that the plaintiffs were not entitled to any relief much less to the relief of possession by partition and permanent injunction.