JUDGEMENT C. R. Thakur, J.:- This appeal has arisen out of a suit brought by Smt. Lila Wati widow of Duni Chand and her sons and daughters against Paras Ram and his sons for possession of the lower flat of house situate in Chowk Bazar, Solan, and for recovery of Rs. 900/- on account of use and occupation and future mesne profits. In order to appreciate the facts of the case it will be better to give the pedigree-table of the parties and which is as under: Till 1937 according to the plaintiffs the three brothers, Sawan Ram, Munshi Ram and Paras Ram constituted a joint Hindu family and in that year a partition was effected between these three brothers and a mutation to that effect was attested on 6-6-1937. According to this partition the land in khasra Nos. 320 and 325 including the property situated thereon fell to the share of Munshi Ram and the same day, Munshi Ram gifted that property to his son, Duni Chand, who entered into possession of the same. It is averred that after this gift Duni Chand purchased Khasra No. 326/1 from one Kishori Lal by a registered deed, dated 24-10-1944. This land was said to be contiguous to the land acquired by him under a gift from his father. It is pleaded that after the purchase of khasra No. 326/1, Duni Chand carried out many improvements on this consolidated plot and completely dismantled the old structure and erected a two storeyed building consisting of two shops and residential house at his own costs. Duni Chand died on 25-5-1961 and Munshi Ram died in 1962. According to the plaintiffs, they are the legal heirs of Duni Chand. The defendants had taken illegal possession of a portion of lower story of the property shown in red in the map attached to the plaint. The plaintiffs had requested the defendants to surrender the possession of the property by a notice, dated 21-9-1964 but by the reply, dated 26-9-1964 they refused to do so. Hence they had per-force to file the suit. They claimed mesne profits at the rate of Rs. 300/- per annum for the use and occupation of the property for the last three years which amounted to Rs. 900/- and they also claimed future mesne profits.

2. The defendants denied the partition and averred that the property held by them including the property in suit was their joint Hindu family property. It was also denied that Munshi Ram made any gift of the property in suit in favour of Duni Chand nor he was competent to do so. It was pleaded that the property bearing khasra No. 326/1 was purchased with the joint family funds and is their joint family property. The building on the land khasra Nos. 320, 325 and 326/1 was constructed with their joint family funds and is joint family property. The defendants were in possession of the property in suit as owners in their own rights as members of the joint family. In their additional pleas it was averred that the alleged mutations are false and fictitious documents. Paras Ram, defendant No. 1 never appeared before the Revenue Officer nor the Patwari nor he ever made any statement that a partition had taken place. In the alternative it was pleaded that in case it was found that the defendants were in wrongful possession of the property as represented by the plaintiffs yet they had acquired ownership rights by adverse possession as they had been in possession of the property in suit for more than 12 years before the institution of the suit.

3. A number of issues had been framed and after recording the evidence of the parties the trial court dismissed the suit holding that the partition through the mutation, Exhibit P. 1, was a fictitious one made with an ulterior motive by the parties connected with it. Further that the property was heavily encumbered at that time by the mortgages and it was not un-reasonable to infer that the firm Bhuja Mall Sawan Ram was not doing well and was facing financial crisis and so the partition was nominally effected to safe-guard it from the creditors of the firm and that is why on the same day Paras Ra

Click Here to Read the rest of this document