- (1.) The plaintiffs are in second appeal against the judgment and decree of both the Courts below by which their suit filed for declaration that they are exclusive owners in possession of the portion of building no. B-III-58/59 (old) and B-III-908-909 (new), situated at Chowk Saidan, Ludhiana and for permanent injunction restraining defendant no.1 from making any additions/alterations in any manner in the portion of the property under his tenancy and further restraining him from alienating it in any manner whatsoever has been dismissed.
(2.) The plaintiffs' case is that Sawan Mal, grandfather of plaintiff nos. 1 to 5 and father of plaintiff no.6, was allotted the property in dispute by the Rehabilitation Department vide conveyance deed dated 30.04.1962. Sawan Mal died on 18.01.1972 and before his death, he executed a Will dated 08.08.1969 in favour of his three sons, namely, Charanji Lal, Bodh Raj and Siri Ram, by which the property in dispute was given to them in equal shares along with other properties. Bodh Raj, one of the sons of Sawan Mal, unheard of for the last more than seven years, was declared dead vide judgment dated 12.08.1977. Siri Ram, second son of Sawan Mal, died on 06.04.1978 but his 3rd son Charanji Lal is still alive. After the death of Bodh Raj, his share in the property in dispute was inherited by plaintiff nos. 1 to 3 along with his widow Subhadra Devi and after the death of Siri Ram, his share was inherited by plaintiff nos. 4 to 6. Subhadra Devi also died in the year 1982 and her share was inherited by plaintiff nos. 1 to 3. It is also averred that there was a family settlement between Charanji Lal and the plaintiffs by which the property in dispute came to exclusive ownership of the plaintiffs to the extent of 1/2 share each i.e. 1/2 share was declared to be the ownership of Daya Nand and his two sisters, whereas the remaining 1/2 share was declared to be in the ownership of plaintiff nos. 4 to 6. The portion of the property illustrated as yellow in the site plan was declared to be the ownership of plaintiffs and defendant no.2 to the extent of 1/3 share each. The Court of Sub Judge 1st Class, Rohtak, vide judgment and decree dated 10.09.1988, declared the aforesaid family settlement in case titled as "Charanji Lal v. Daya Nand and others". It was also alleged that the plaintiffs are exclusive owners in possession of the portion of the aforesaid property and are owners to the extent of 2/3rd share in portion of the building illustrated in yellow colour. Defendant no.1 has no concern whatsoever with any portion of the property except that his mother Parvati Devi was inducted as a tenant in portion of the building consisting of two rooms at a monthly rent of Rs. 1/-. After the death of Sawan Mal, defendants started residing in the tenanted portion as tenants but they have made additions and alterations without the consent of the owners. Parvati Devi used to make payment of rent to Sawan Mal during his life time and after his death, she started making payment of rent to his heirs. Initially, the rate of rent was Rs. 1/- per month but after the death of Parvati Devi, a settlement was arrived at between defendant no.1 and the predecessor-in-interest of the plaintiffs whereby rent was settled @ Rs. 50/- per month and defendant no.1 started paying rent @ Rs. 50/- per month to Siri Ram. The rent was paid up to 30.04.1978 but thereafter he refused to make the payment of rent. The plaintiffs filed an ejectment petition in the Court of the Rent Controller, Ludhiana, but the same was later on withdrawn. In the said case, defendant no.1 denied his tenancy and asserted his title over the tenanted premises. After withdrawing the said proceedings, defendant no.1 compromised the matter and agreed to increase the rent if the plaintiffs would admit that additions and alterations were not done by defendant no.1. The rent was increased to Rs. 250/- per month w.e.f. 01.10.1986. Defendant no.1 stopped making the payment of rent w.e.f. 01.01.1987 and started asserting his ownership rights over the property in dispute which led to the filing of the suit.
(3.) Defendant no.1, while contesting the suit filed by the plaintiffs, raised various preliminary objections and averred on merits that Sawan Mal was neglected by the plaintiffs and defendant no.2. Defendant no.1 has been in possession of the property in his own right from the very beginning even prior to the allotment of the house in dispute to Sawan Mal. Smt. Parvati Devi, mother of defendant no.2, was the real sister of Sawan Mal as well as mother of defendant no.1 and being sister of Sawan Mal, she was looking after and maintaining him. In lieu of the services rendered by Smt. Parvati Devi, Sawan Mal executed his last and valid Will dated 13.04.1969 in favour of Smt. Parvati Devi. The plaintiffs and defendant no.2 got some documents executed in their favour from Sawan Mal and in order to nullify the effect of those documents, Sawan Mal made an oral family settlement on 01.01.1970 followed by a memorandum dated 15.04.1970 and gave the property in dispute to Parvati Devi. It is also alleged that name of defendant no.1 has been duly recorded in the municipal record.;