LAL DASS Vs. RAGHBIR DASS

JUDGEMENT

(1.) The instant Regular Second Appeal has been filed by the appellantdefendant against the judgment and decree dated 22-7-1982 passed by District Judge, Bhatinda vide which while reversing the judgment and decree of the trial Court, suit of respondent No. 1-plaintiff was decreed and it was held that the parties to the suit are coparceners in the suit property which is their Joint Hindu Family property; and permanent injunction was granted to respondent No. 1 restraining the appellant from alienating the suit property without any legal necessity or other needs as contemplated under the Hindu Law.

(2.) The brief facts of the case are that plaintiff and defendant No. 2 and 3 are the sons of defendant No. 1. The plaintiff filed the instant suit for declaration and permanent injunction against his father impleading his other two brothers as defendants No. 2 and 3 to the effect that the land in dispute measuring 486 Kanals 5 Marias is their Joint Hindu Family property. It was alleged that the parties to the suit are coparceners having equal rights in the coparcenary property under the Hindu Law. It was further alleged that defendant No. 1 appellant is merely Karta of the family and has no right to alienate the coparcenary property in any manner except for the legal necessity as permissible under the Hindu Law. Since the defendant-appellant was denying the rights of the plaintiff-respondent No. 1 in the said coparcenary property and was out to alienate the disputed land without any legal necessity, therefore, the instant suit was filed.

(3.) The aforesaid suit was contested only by the defendant-appellant as the other two defendants did not appear in pursuance to the notice issued to them and they were ordered to be proceeded against ex-parte. The defendant-appellant contested the suit by alleging that the plaintiff filed the instant suit in collusion with defendants No. 2 and 3 as at that time the plaintiff was having no interest in the suit property and no locus standi to file the instant suit. It was further alleged that the plaintiff was not in possession of the suit land. It was further alleged that on earlier occasion also, the plaintiff along with his brother Manohar Dass (defendant No. 2) filed a suit against defendant No. 1 appellant for declaration to the effect that they were in possession of their respective share in the suit land by claiming that the suit property was partitioned among the coparceners on 23-12-1977. The said suit was dismissed and it was held that the suit property was neither partitioned nor the plaintiff and his brother Manohar Dass were found in possession of the same. It was, therefore, pleaded that the instant suit filed by the plaintiff is not maintainable and is barred by the principle of res judicata.