RATTAN CHAND (DECEASED) Vs. RISHI KESH

JUDGEMENT

(1.) Plaintiffs are the appellants who having lost before both the Courts below have filed the instant second appeal. The parties hereinafter shall be referred to as the "plaintiffs" and the "defendants".

(2.) The plaintiffs filed a suit for permanent prohibitory injunction on the allegations that they alongwith defendant and other co-sharers are joint owners in possession of the suit land comprised in Khata No. 529, Khatauni No. 595 bearing Khasra Nos. 5836, 5862, 5863, 5864, Mohal Chamba Town-II, H.B. No. 176, Pargna Panjla, Tehsil and District Chamba and the suit land is still unpartitioned between the parties, but the defendant without prior consent of the plaintiffs and other co-sharers started digging the foundations with a clear motive to raise new construction of his house over the best portion of the land in suit and despite requests not to raise any construction, was insisting for the same. Hence, this suit.

(3.) The defendant resisted and contested the suit by filing written statement-cum-counter claim, inter alia, raising preliminary objections like estoppel and maintainability etc. On merits, it was contended that the revenue entries regarding Khasra Nos. 5836, 5862, 5863, 5864, 5865 measuring 580-2 sq. yards, showing the land in suit to be still joint between the parties are wrong and illegal and the defendant was exclusive owner in possession thereof vide partition deed dated 13.05.1958, which was effected by Shri Narotam, grand-father of the parties. Shri Narotam had two sons, namely, Harua and Parmanand and one daughter Mugti and in the family partition the property/house comprising Khasra Nos. 5893, 5894 was given to Parmanand and after his death the father of the plaintiffs had disposed of the property comprising Khasra Nos. 5893, 5894 in favour of Narain Dass with the consent of Smt. Mugti and Harua, father of the defendant for a sale consideration of Rs.2800/- received by Shri Parmanand out of which Parmanand had purchased another house adjoining house of the defendant. It was further averred that the construction over this land in suit was already completed by the defendant in the year 1991-92 to the knowledge of the plaintiffs and the defendant neither dismantled the old structure nor raised any structure over the same. It was further contended that the notice issued to the defendant was illegal and suit of the plaintiffs was not maintainable as no cause of action arose to them and prayed that the counter claim of the defendant be decreed while the suit of the plaintiff be dismissed.