JUDGMENT :

Nidhi Gupta, J. 

CM-17062-C-2019

Prayer in this application filed under Section 151 CPC is for condonation of delay of 70 days in refiling the accompanying appeal.

2. Heard.

3. For the reasons mentioned in the application which is duly supported by an affidavit of learned counsel for the applicant/appellants, the same is allowed and delay of 70 days in refiling the appeal is condoned.

RSA-6005-2019 (O&M)

Present Second Appeal has been filed by the plaintiffs against the concurrent judgments and decrees of the learned Courts below, whereby suit filed by the appellants for declaration and consequential relief of permanent injunction, has been dismissed by both the Courts below.

2. Brief facts of the case are that the plaintiffs had filed a suit seeking declaration that the plaintiffs are owners in possession of suit land as described in the plaint on the basis of Jamabandi for the year 20052006 and accordingly, plaintiffs are entitled to get the names incorporated in the revenue record as owners in possession of the suit land in place of defendant No.1. Consequential relief was also sought that a decree for permanent prohibitory injunction be issued to restrain defendant No.1 from alienating or creating any type of encumbrances over the suit land.

3. It was the pleaded case of the appellants that Bhartha Ram, the maternal grandfather of the plaintiffs was having agricultural land at village Dhaba Kukrian, Tehsil Abohar, District Ferozepur (Punjab). It was alleged that vide a Family Settlement executed about 30 years ago, the suit land had come to the share of Smt. Vidya Devi, mother of the plaintiffs. Thus, she became owner in possession of suit land. On 02.02.2006, again a family and mutual partition was effected between the family members in which land measuring 13K 11M was given to Smt. Vidya Devi, mother of the plaintiffs. Therefore, although Vidya Devi was owner in possession of 13K 11M of land pursuance of the above said Family Settlements, the same was still shown to be in the name of defendant No.1 in the revenue record. Vidya Devi had died on 18.05.2010. Plaintiffs being the only LRs of Vidya Devi, therefore, became owners in possession of suit land. However, the defendant No.1 had threatened the plaintiffs to alienate or create encumbrances over the suit land and to interfere in possession of the plaintiffs over the suit land forcibly or illegally. Accordingly, present suit was instituted on 20.10.2010.

4. Learned Trial Court vide judgment and decree dated 01.09.2014 had dismissed the suit of the plaintiffs. The appeal filed by plaintiffs was dismissed by the learned Additional District Judge, Fatehabad vide judgment and decree dated 20.02.2019. Hence, present second appeal by the plaintiffs.

5. It is inter alia submitted by learned counsel for the appellants that the learned Courts below were in a patent error in non-suiting the appellants as the Family Settlement dated 02.02.2006 is not disputed by the defendants. In fact, defendant No.1 has admitted his signature over the said Family Settlement; and did not even make any effort to rebut his signature on the said Settlement by producing expert report. Defendant No.1 had pleaded that his signature had been procured fraudulently as he was undergoing treatment for de-addiction in hospital and must have signed the Settlement under the influence of substance. However, the defendant No.1 had failed to place on record any treatment records for the alleged de-addiction. On the contrary, during that period he was doing permanent job.

6. Learned counsel further submits that the plaintiffs had successfully proved that their mother was in possession of suit land as owner by virtue of oral Family Settlement for the last more than 30 years. Learned Courts below have also failed to appreciate that the Settlement dated 02.02.2006 Ex.P7 is a Memorandum of Partition in view of the previous original oral partition; and, therefore, Memorandum of Partition does not require registration un