R. S. A. No. 711 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Case No. : R. S. A. No. 711 of 2011

Date of Decision : February 09, 2011

Gurmeet Singh

....

Appellant

Vs.

Manjeet Singh and others

....

Respondents

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

* * *

Present :

Mr. Vikas Gupta, Advocate

for the appellant.

* * *

L. N. MITTAL, J. (Oral) :

Defendant no.1 Gurmeet Singh has filed the instant second

appeal.

It is unfortunate litigation among the siblings. Suit was filed by

respondents no.1 and 2/plaintiffs (Manjit Singh and his wife Balbir Kaur)

against defendant no.1/appellant Gurmeet Singh and defendant

no.2/proforma respondent no.3 Satnam Singh. Plaintiff no.1 and both

defendants are sons of Gurbachan Singh. Defendant no.2, being of unsound

mind, was sued through his mother Harbans Kaur as Guardian.

Undisputedly the suit house was owned and possessed by

R. S. A. No. 711 of 2011

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Gurbachan Singh, vide registered conveyance deed dated 13.08.1962. On

his death, it was inherited by his four sons i.e. plaintiff no.1, defendants

no.1 and 2 and Darshan Singh and also by a daughter Ranjit Kaur and

widow Harbans Kaur i.e. 1/6^th share each. Plaintiffs' case is that Ranjit

Kaur gifted her 1/6^th share in the suit property in favour of her three brothers

i.e. Darshan Singh, plaintiff no.1 and defendant no.1 vide registered gift

deed dated 28.04.1999. In December 2003, Darshan Singh sold his share in

the suit property to plaintiff no.1 and defendant no.1 in equal shares vide

registered sale deed dated 09.12.2003. Thus, plaintiff no.1 and defendant

no.1 became owners of the suit house to the extent of 1/3^rd share each.

Thereafter, plaintiff no.1 purchased 1/6^th share of his mother Harbans Kaur

vide registered sale deed dated 09.06.2004 and consequently, plaintiff no.1

became owner in possession of half share of the suit property. Then he

gifted 1/3^rd share out of it to plaintiff no.2 vide registered gift deed dated

06.11.2006. Thus, according to plaintiffs, plaintiff no.1 is left with 1/6^th

share, plaintiff no.2 and defendant no.1 have 1/3^rd share each and defendant

no.2 has 1/6^th share in the suit house. The plaintiffs' further case is that on

02.01.2007, parties mutually partitioned the suit house. Northern portion

measuring 262.66 sq. yds., depicted by letters ABGH in site plan, came to

defendant no.1; Middle portion measuring 393.93 sq. yds., depicted by

letters GHIJ in the site plan, came to the share of plaintiffs; whereas

Southern portion measuring 131.41 sq. yds., depicted by letters IJCDEF,

R. S. A. No. 711 of 2011

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came to the share of defendant no.2, the total area of house being 788 sq.

yds. The parties raised construction over their respective portions.

Accordingly, plaintiffs sought declaration that the parties are owners in

possession of aforesaid respective portions in the suit house. In the

alternative, the plaintiffs sought partition of the suit house according to the

aforesaid shares.

Defendant no.1 inter alia pleaded that Ranjit Kaur gifted only

100 sq. yds. area out of her share to her three brothers and the remaining

area is still of her share. Sale deed by Harbans Kaur in favour of plaintiff

no.1 was denied. The said sale deed was said to be result of fraud. Harbans

Kaur was alleged to be illiterate and parda nashin lady. No sale

consideration was paid to her by plaintiff no.1. No mutual partition of the

suit property ever took place. The parties are in separate possession as co-

owners. Defendant no.1 claimed entitlement to 272.41 sq. yds. area. Other

plaint allegations were not controverted. Defendant no.2, however,

admitted the claim of the plaintiffs.

Learned Civil Judge (Junior Division), Panipat, vide judgment

and decree dated 10.06.2010, decreed the suit for partition of the suit house,

holding plaintiff no.1 to be entitled to 1/3^rd share therein and preliminary

dec