- (1.) The instant appeal filed by the plaintiff is directed against the judgment and decree dated 19.1.1989 passed by the learned Additional District Judge, Faridkot, whereby the first appeal of the plaintiff was dismissed upholding the judgment and decree dated 5.6.1986 passed by the learned Additional Senior Sub-Judge, Moga, dismissing the suit for declaration and permanent injunction.
(2.) Brief recapitulation of the facts is as follows: The plaintiff filed the suit for declaration and permanent injunction pleading that suit property was an ancestral house situated at Moga. It was stated by the plaintiff that suit property was owned by Kundan Lal, father of the parties. The parties to the suit and their father Kundan Lal formed a joint Hindu family. Kundan Lal was the karta of the joint Hindu family. He brought about the written partition of his property on 19.8.1957. Pursuant to the partition, the plaintiff Ved Parkash became owner of the suit property. It was further alleged that the plaintiff had been coming in continuous and peaceful possession over the suit property since the date of its partition. The defendant was estopped by his act and conduct from interfering in the lawful and peaceful possession of the plaintiff. Besides, it was also alleged that Kundan Lal moved an application dated 4.6.1962 to the office of Excise and Taxation Officer, Ferozepur, for allotment of separate number and for separate assessment of the house in question. It was further the case of the plaintiff that he had been paying electricity, water, sewerage and house tax bills in the capacity of owner. Faqir Chand-defendant was in possession of that portion of the house which was marked in green colour' in the site plan. The house marked in green colour had come to the share of the defendant.
(3.) The defendant filed his written statement taking the plea that the suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure ('Civil Procedure Code' for short). He further alleged that the site plan was not according to the factual position obtaining at the site. The suit was not properly valued for the purposes of court fee and jurisdiction. Five daughters and widow of Kundan Lal were necessary parties, but had not been impleaded. The suit property was the self acquired property of Kundan Lal. The plaintiff was living separately from Kundan Lal for the last 30 years. Kundan Lal never effected any partition. The defendant further pleaded that Kundan Lal executed a registered Will dated 16.5.1983 bequeathing all his property in favour of the defendant. The plaintiff was residing at Lucknow for the last 25 years. The defendant further pleaded that he was in possession of the entire house as owner. On completion of the pleadings of the parties, the learned trial court framed the following issues:- 1. Whether the plaintiff is owner of the house in dispute? OPP 2. Whether Kundan Lal executed a valid Will dated 16.5.1983 in favour of the defendant? OPD 3. Whether the suit is barred by the provisions of Order 2 Rule 2 Civil Procedure Code? OPD. 4. Whether the suit is bad due to non-joinder of necessary parties? OPD. 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 6. Relief;