DURGA DASS Vs. GANESH DUTT

JUDGEMENT

(1.) THE respondent -1 has filed suit for declaration that the gift deed dated 5 -10 -1962 registered by the Sub Registrar, Samba, executed by Kukan son of Mathra (deceased) in favour of the appellant with respect to the land comprising Khasra Nos., the detail of which is given in the appeal is null and void . His contention in the suit is that he has common ancestor with defendant -5 and the ancestral property is jointly owned by them. The said Kukan has executed a gift deed in favour of petitioner - -defendant -1 on 5 -10 -1962. He states that being ancestral and joint undivided property, the same could not have been gifted by the said Kukan . He has sought cancellation of the gift deed dated 5 -10 -1962 and also a direction restraining defendant -1 from receiving any compensation with regard to the land requisitioned by the concerned authority. Defendant -1 on the other hand, took a plea that during his life time, Kukan and his brother Dina Nath had divided the property. The property which has fallen to the share of Kukan was gifted to defendant -1 on 5 -10 -1962. Ever since the defendants were in possession of the property to exclusion of the plaintiff and other persons claiming it as coparcenery and ancestral property. The other contention raised by the defendant -appellant is that the plaintiff/ respondent had no right to question the gift deed, which was executed in the year 1962, when admittedly he was not born on that date. Before he could acquire any right in the said property, it was already transferred by a gift deed to the present appellant.

(2.) AN application under order 39 Rules 1 and 2 was also filed before the court below and the court below vide its order dated 24 -12 -2002 had directed that 1/4th compensation be not distributed to the appellant herein. It is this order, which is the subject matter of challenge in this appeal.

(3.) I have heard the learned counsel for the parties.