MALKIAT SINGH Vs. RAM DIAL
HIGH COURT OF HIMACHAL PRADESH
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DEVINDER GUPTA,J. -
(1.) This Regular Second Appeal by plaintiff -appellant is against the judgment and decree of District Judge, amirpur passed on 17th September. 1984, allowing the appeal of defendant -respondents and dismissing the plaintiffs suit thereby reversing the judgment and decree passed on 19th October, 1981 by Senior Sub -Judge, Hamirpur through which the plaintiffs suit had been decreed.
(2.) Malkiat Singh alias Subhash plaintiff on 9th June, 1969 instituted a suit which has given rise to the filing of the instant appeal, claiming a decree for possession of the suit property being 1/2 share in 212 Kanals 6 Marlas of agricultural land situate in Tika Saur in tehsil and District Hamirpur, alongwith a double storeyed Pacca residential house within Abadi and land underneath. The basis for the decree, as stated in the plaint was that the suit property, in the hands of his father was ancestral qua him and the parties to the suit, alongwith his father Lal Singh, being agriculturists Rajputs of Tehsil Hamirpur, were in the matter of alienation governed by the agricultural custom, according to which such property could not be sold by the holder thereof without any legal necessity. Since, as it was averred in the plaint, Lal Singh was a spend thrift and addicted to liquor and other vices, taking undue advantage of his weakness, defendants who were his collaterals and holder of remaining half share in the property got transferred the entire property, in their name on the basis of a deed of sale dated 7th December, 1959 registered in the office of sub -Registrar, Hamirpur on 9th December, 1959. Lal Singh was stated to be an owner of considerable property having no necessity to dispose of any part of the property and there being no pressure on the estate, the alienation of the suit property in favour of defendants was claimed to be without any legal necessity and as such it was claimed that the same being prohibited under custom, as such was ineffective and inoperative upon his rights. Plaintiff claimed that the sale was made by his father when he was only three months of age and since now his father had expired four years prior to the institution of the suit, he was entitled to claim possession of the suit property to which defendants have acquired no right. The plaintiff being minor, suit was instituted through his mother being the natural guardian.
(3.) The suit was contested by the defendants, who, on 26th March, 1970 filed their written statement, in which they simply denied the averments made in the plaint. The defendants denied that the suit property was ancestral in the hand of alienor qua plaintiff or that the parties were governed by custom. Defendants also denied the averments that Lal Singh was spend -thrift, drunkard or had other vices. It was asserted that sale was for valid consideration and for legal necessity, What that legal necessity was, was not pleaded. By way of Preliminary Objection, it was alleged that suit was within period of limitation.;
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