PREM NATH Vs. MUNSHI RAM

JUDGEMENT

(1.) THIS is defendants, second, appeal from the judgment and decree dated 22 -9 -1966 of the learned District Judge Badarwah affirming the judgment dated 20 -6 -1965 passed by the Sub Judge, Kishtwar, decreeing the plaintiffs suit for joint possession of the land described in Para 4 of the plaint.

(2.) THE facts giving rise to this appeal are : By a deed dated 23 -7 -1963 Devi Das and Rup Chand sons of Mukhta Thakkar of village Cherji Tehsil Kishtwar gifted 32 Kanals and 10 marlas of land out of joint and undivided estate measuring 49 Kanals and six Marlas comprised in Khewat No 1 , Khata Nos. 1 to 3 situated in village Cherji, Tehsil Kishtwar, in favour of Prem Nath, the son -in -law of Devi Das. Munshi Ram, minor claiming to be the son of Rup Chand filed a suit through his maternal grand father, Khazana as his next friend for possessing of the snd land in the court of the Sub Judge, Kishtwar, on 9 -8 -1963, against Prem . Nath donnee averring that Mst. Nauratu was the legally wedded wife of Rup Chand, that the land measuring 49 Kanals and 6 Marlas comprised in Khewat No. I Khata Nos. 1 to 3 situated in village Cherji was the joint and ancestral property of the coparcenary consisting of his uncle Devi Das, his father Rup Chand. and himself, that the alienation of 32 Kanals and 10 Marlas of land out of the joint holding as evidenced by the aforesaid gift deed was void and ineffectual as the property being the coparcenary property, Devi Dass and Rup Chand the donors, could not gift away the same. To this suit both the donors Devi Dass and Rup Chand were impleaded as co -defendants.

(3.) DURING the pendency of the suit, Devi Dass, one of the donors died, and the plaintiff made an application dated 2 -12 -1963 before the trial court stating therein that Devi Dass had died in Katik (1963) and that since Prem, Nath was in possession of the estate of, the deceased Devi Das, he should be brought on the record as legal representative of Devi Das, It may he mentioned that by then the defendants Nos, 1 and 3 namely Prem Nath and Rup Chand had not been served and had not appeared before the trial court. It was on 3rd February 1964 that the said defendants appeared before the trial court of Sub Judge who passed the following order in their .presence t "Vakil mudayi wa Vakil mudalian 1 ta 3 hazar. Mudalia No. 2 chonka faut ho couka hai aur us ka qaim muqam Prem Nath mudalia ko bataya gaya hai aur us ki ganab sa bhi Vakil hazar hai. Naqal arzi dahwa diya gaya. Jawabdahwa bataqarar 2 March 1964 pesh hoba. Hukam sunaya gaya."