VINEY MITTAL, J. - (1.) The present appeal has been filed by legal representatives of defendant No.3 and also defendant No.6. Defendants No.3 to 6 have concurrently lost before the two courts below. The plaintiffs filed a suit for possession by way of partition of the suit property, as detailed in the plaint. It was claimed by them that Labhu Ram son of Harnam Dass was the original owner of the suit property who had died on April 12,1967, Labhu Ram was survived by three sons, namely, Charan Dass, Gopal Dass and Shiv Nath. The plaintiffs are sons of Charan Dass. Defendants No.2 to 6 are the children of Gopal Dass whereas Shiv Nath was arrayed as defendant No.1. Plaintiffs claimed that in this manner, the property was to be shared by the plaintiffs, defendants No.2 to 6 and Shiv Nath, defendant No.1 to the extent of 1/3rd each. The plaintiffs further claimed that the aforesaid properties were mortgaged by Labhu Ram with Girdhari Lal for an amount of Rs.10,400/- through a registered mortgage deed dated March 11,1957. It was claimed that the plaintiffs had redeemed the aforesaid property on payment of the mortgaged amount but the defendants had failed to pay their share of the redemption amount.
(2.) The suit was contested by defendants No.2 to 5 and defendant No.6. Defendant No.1 filed an admission written statement. In their written statement, defendants No.2 to 5 took various technical pleas. On merits, it was claimed that they are in exclusive possession of the property marked ABCD and that plaintiffs as well as defendant No.1 have no concern with the same. They also denied that plaintiffs and defendant No.1 had ever inherited the property after the death of Labhu Ram. The joint nature of the property 66/4 was also specifically denied. The aforesaid defendants also relied upon some earlier litigation between the father of the plaintiffs and father of defendants No. 2 to 6 to claim that the possession of the suit property had been taken by the defendants.
(3.) In her separate written statement, defendant No.6 maintained that defendants No.2 to 5 and defendant No.6 had become owners of the suit property by lapse of time and had also acquired ownership by way of adverse possession. It was claimed that shop No.76/4 had been mortgaged by Labhu Ram to Gopal Dass by way of mortgage deed dated February 6,1951 and had never been redeemed. In this manner, the heirs of Gopal Dass had become owners of the aforesaid property by efflux of time. Learned trial Court examined the entire evidence on record and held that the defendants had failed to prove that they had become owners of the suit property by way of adverse possession. It was held that being coowners, they could not have become owners by adverse possession since no such evidence had been led by them that the other co-owners had been ousted by any overt Act. The reliance placed by the defendants on the earlier judgment Ex.D1 dated November 27,1967 was held to be not helpful to the said defendants inasmuch as no details of the property were mentioned in the said judgment. The learned trial court further noticed the plea raised by the plaintiffs that the property in question had been got redeemed by them after payment of Rs.10,400/- to Girdhari Lal but rejected the same that there was no evidence that they had redeemed the property. Learned trial Court also noticed the claim made by defendants No.2 to 6 that the property had been redeemed by them but also rejected the same for want of evidence. It was further noticed by the trial court that defendant Shiv Nath had appeared as DW1 and had stated that he is still ready to deposit his share of redemption amount. The plea taken by the defendants that some property had been mortgaged by Labhu Ram with Gopal Dass was also rejected on consideration of document Ex.P25 and it was held by the trial court that the property had been mortgaged with Girdhari Lal and not Gopal Dass. Thus, the trial court held that the property was originally owned by Labhu Ram and on his death all the three branches which represented his three sons were entitled to 1/3rd share each. Consequently the suit filed by the plaintiffs was decreed.;