Decided on November 10,2006

PREM LATA Respondents


- (1.) IMPUGNED in this appeal is preliminary decree and judgment purported to have been passed by District judge, Udhampur on 31.7.1996 in Civil suit No.96 captioned as: Smt. Prem Lata vs. Smt. Mohani Devi and anr.  Whereunder while accepting respondents share in the ancestral property, trial court decreed the same. Following is the circumstantial backdrop.
(2.) IT appears that the common ancestor of parties namely Nath Ram son of Karam Chand of Udhampur who died in 1969 was survived by his widow Subhderan Devi daughters, the present parties namely Smt. Prem Lata and Smt. Mohani Devi, and a son Chuni Lal, the defendant No.2 in original suit. Widow of Nath Ram aforesaid died in 1985 and the property left behind by Nath Rain comprising of a residential house consisting of five rooms, two kitchens with two shops, and the land appurtenant thereto alongwith a separate shop situated in Lambi Gali, Ward No. 10 became bone of contention between the parties with respondent/plaintiff claiming I/
(3.) RCL there from on the plea of joint possession and seeking its partition by metes and bounds besides claiming exclusive possession of one room in the residential house and constructive possession over Iwo shops; and the appellants/ defendants denying the same on the ground that respondents/ plaintiffs had never been in possession of any part or portion of the suit property due to which she could not claim any share or portion. Raising plea of exclusive possession over suit property they also pleaded that long after demise of father, appellant Smt. Mohani Devi had raised two shops and the kitchen on a vacant piece of land out of her own resources, the land having been transferred by her deceased mother Smt. Subhedran Devi. Rest of the suit property was claimed to be ancestral half of which after death of Nath Ram devolved upon the son Chuni Lal and the remaining half upon daughters, the appellants and respondents, in equal shares. An additional plea taken was that during her life time the mother of parties Smt. Subhedran Devi executed an affidavit on 9.5.1981 to the effect that after death her whole moveable and immoveable property would go to appellant Smt. Mohani Devi alone to the exclusion of other descendents. 3. Grounds pleaded to assail the trial court decree are that findings of the court below particularly regarding issue No. 1, 3, 5 and 6 as framed in the matter are against the weight of evidence, which has not been properly appreciated, while issue No.4, did notarise from pleadings of parties and was wrongly framed. In condensed form, therefore, the basic attack to impugned decree is that while passing it the trial court did not properly appreciate the evidence and deduced wrong conclusions there from not permissible in facts and circumstances of the case. Respondent has not filed any rejoinder to the appeal and during course of submissions while appellants counsel, besides elucidating the grounds of appeal with reference to certain portions of the evidence has also contended that in view of Section 28 of Limitation Act, the rights of respondents what ever, would stand extinguished due to afflux of time, and as being a daughter she could also not ask for partition of joint coparcenery property unless the male heirs chose to effect the same, etc. In reply respondents counsel has contended that in view of the admissions made by appellants in the written statement they could not deny respondents share in suit property and that as a co -owner she would always be deemed to have been in joint possession thereof alongwith appellants and as such the trial court has come to right conclusions after rightly appreciating respective evidence of parties on record. During course of submissions, counsel have cited certain reported cases also, which if necessary, would be discussed in due course. I have heard learned counsel, gone through the record and considered the matter. Since appellantâ„¢s challenge to impugned decree and judgment is the alleged mis -appreciation of evidence by learned trial judge, it becomes necessary to re -evaluate the same with brief reference to issues framed and conclusions arrived thereupon. Before that, however, it would be apt to notice appellantâ„¢s admission of respondentsâ„¢ claim to a share in the suit property. Perusal of pleadings reveals that in Para 2(a) of written statement the present appellant has admitted that respondent was entitled to one -fourth out of the property left behind by Nath Ram. With that admission the area of conflict regarding respondents title to disputed property would shrink down to the size of her shares only, as respondent claims it to be one third. With admission of her title as such most of the questions, like nature, of the properties held by Nath Ram and factum of possession thereof having bearing upon respondents claim thereto as a successor to Nath Ram would loose much of their relevance, leaving the size of shares claimable only to be adjudicated upon.;

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