- (1.) Being unsuccessful before the courts below, the plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 23.11.1985 passed by the first appellate court and the trial court dated 8.3.1982 whereby the suit of the plaintiff for separate possession, was dismissed. Put succinctly, the facts of the case are that the plaintiff filed a suit for separate possession of his 1/2 share by effecting partition of the house situated in Dewane Street, Nabha (hereinafter referred to as "the suit property") as shown in the site plan attached with the plaint. It was pleaded that the suit property was owned by Kanwar Sain and he had three sons, namely, Hari Ram, Bhagwan Dass and Dr. Sita Ram (plaintiff). On the death of said Kanwar Sain, the suit property devolved upon the plaintiff and his brothers in equal shares. One of the brothers, namely, Hari Ram bequeathed his 1/3rd share in the suit property to his remaining two brothers in equal shares who became owners of the suit property to the extent of one half share each. It was further pleaded that Bhagwan Dass died and defendants No. 1 to 6 being his legal heirs were co-sharers/co-owners to the extent of one half share in the suit property. The plaintiff wanted to partition the suit property by metes and bounds and he filed the suit, as mentioned above.
(2.) Upon notice, defendant No. 1-Ashok Kumar contested the suit by filing a written statement and raising various preliminary objections therein. It was pleaded that father of defendant No. 1 was the sole owner of the suit property and the plaintiff and Hari Ram had no right in it. The suit property was mortgaged by Kanwar Sain with Dharamarth Bank Nabha and the mortgage money was paid by Bhagwan Dass from his salary who was in possession of the suit property having been subrogated as a mortgagee. It was further pleaded that the mortgage was not redeemed by the plaintiff and the time for redemption had expired. The defendant No. 1 and other heirs of Bhagwan Singh were in possession as owners of the suit property. Defendant No. 1 claimed that he was in adverse possession of the suit property for the last more than 30 years. It was also pleaded that said Bhagwan Dass died and on the basis of Will dated 28.2.1969, defendant No. 1 and Sharda were his legal heirs. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made.
(3.) Defendant No. 2 filed a written statement admitting the claim of the plaintiff whereas defendant No. 3 died during the pendency of the suit and defendants No. 4 to 6 were proceeded against ex parte.;