IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 18.03.2025 Joginder Pal Budhiraja and others ...Appellant(s)

Vs.

Dariyai Lal and others ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Tarun Dhingra, Advocate for the appellants.

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NIDHI GUPTA, J. CM-6659-C-2022 Prayer in this application filed under Section 5 of the Limitation Act is for condonation of delay of 1 day in filing the accompanying appeal.

Heard.

For the reasons mentioned in the application which is supported by an affidavit of the applicant/appellant No.1, the same is allowed and delay of 1 day in filing the accompanying appeal is condoned.

RSA-1895-2022 (O&M)

The plaintiff is in second appeal against the concurrent judgments and decrees of the ld. Courts below, whereby the suit filed by the appellants/plaintiffs for declaration and partition, as well as permanent injunction, has been dismissed with costs by both the Courts below.

2. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellants are the ‘plaintiffs’; and the respondents are the ‘defendants’.

3. Brief facts of the case are that the appellants/plaintiffs filed the present suit seeking a decree of declaration to the effect that Gift Deed dated 15.09.1999 executed by defendant No.1 in favour of defendant No.2 is illegal, null and void. Further declaration was sought that the equitable mortgage created by defendant No.2 in favour of defendants No. 3 and 4 is also illegal, null and void; and prayer for grant of decree of partition and permanent injunction was made.

4. The facts as stated in the plaint are that vide Civil Court decree dated 28.11.1963, Gian Chand/father/predecessor-in-interest of the plaintiffs, became absolute owner of 1/3rd share of the suit property i.e. house No.308-L, Model Town, Karnal. After his death, the plaintiffs being his L.Rs are entitled to inherit his 1/3rd share. The present suit was filed by plaintiff No.1 in his own behalf as well as on behalf of others (L.Rs of deceased Gian Chand) plaintiffs being their General Power of Attorney Holder. Defendant No.1 was also owner to the extent of 1/3rd share i.e. 129.62 Sq. Yards but defendant No.1 transferred the land measuring 25 feet x 70 feet i.e. 194 Sq. Yards vide Gift Deed dated 15.9.1999 in favour of defendant No.2 and that Gift Deed is liable to be declared illegal, null and void as defendant No.1 was owner to the extent of 129.62 Sq. Yards only. Defendant No.2 further mortgaged the suit property with defendants No.3 and 4 on the basis of the aforesaid Gift Deed and thus the same is also liable to be declared illegal as defendant No.2 was not competent to create an equitable mortgage. Defendants No.2 to 4 are intending to alienate the same. Despite requests and legal notices issued by the plaintiffs to the defendants, they have refused to accept the claim of the plaintiffs. Hence, the suit.

5. Upon notice, defendant No.1 appeared and resisted the suit by filing written statement inter alia pleading therein that in the family settlement that took place in the year 1969-1970, the house in question was partitioned and a portion measuring 25 feet x 70 feet came in the share of defendant No.1 upon which, defendant No.1 raised construction in the year 1971-1972. Moreover, Gian Chand, predecessor-in-interest of the plaintiffs had shifted to Ladwa and all the residential and other properties were divided amongst three brothers in which house in question was given to the defendant No.1 as per family settlement. Vide Gift Deed dated 15.9.1999, defendant No. 1 had relinquished his rights qua the said house in favour of his son i.e defendant No.2; whereafter defendant No. 2 was in actual and physical possession of the suit property. It was further pleaded that defendant No. 1 became owner in possession of the suit property by way of adverse possession.

6. Written statement was filed by defendant No.2 along the same lines. Defendants No. 3 and 4 file