VINOD K.SHARMA,J - (1.) PRESENT appeal has been filed against the order passed by the learned Additional District Judge, Amritsar vide which appeal filed by the respondents herein was accepted and the case was remanded to lower court for fresh decision on merit after hearing the learned counsel for the parties in accordance with law.
(2.) THE plaintiff-appellant had filed a suit for partition of joint property i.e. House No. 4940/37 measuring 75.5 square yards in which the plaintiff had 2/3rd share. He also claimed 2/3rd share in the amount lying in the Central Bank which was deposited by Harnam Singh. It was claimed that the plaintiff and Harnam Singh were collateral. Harnam Singh had died issueless. Hira Singh had two sons namely Jagat Singh and Ganga Singh. Ganga Singh had two sons namely Arjan Singh and Surjit Singh while Jagat Singh left behind plaintiff No. 2 Ram Singh as his son. It was claimed that Harnam Singh was living separately in the house in dispute who died on 29.10.1984 without any issue while the plaintiffs are the residents of Bihar. Wife of Harnam Singh had died before the death of Harnam Singh and thus, the property in dispute was inherited by plaintiffs No. 1 and 2 and defendant No. 1, in equal shares. Defendant No. 1 got sale deed executed in favour of defendants No. 2 to 4 of the property in dispute by taking advantage of the absence of the plaintiff. Defendant No. 1 had claimed that Harnam Singh had executed a Will in his favour though no such Will has been executed. The Will was claimed to be bogus one and the sale deed executed by defendant No. 1 in favour of defendants No. 2 to 4 was claimed to be illegal and ultra vires. It was claimed that defendant No. 1 had 1/3rd share in the suit property and the said sale deed is valid only qua the share of defendant No. 1 and thus, the suit for partition of the house as well as for recovering the amount lying in the bank was filed.
(3.) THE suit was contested by defendant No. 1, while defendants No. 2 to 4 were proceeded ex parte. It was alleged that the suit was not maintainable in the present form as the plaintiffs were not in possession of constructed portion of the house property. It was claimed that the plaintiffs have no locus standi to file the present suit as the property has already been sold by defendant No. 1 being owner on the basis of Will. It was also claimed that the suit was not properly valued for the purposes of court fee and jurisdiction and that it was bad for misjoinder of parties and cause of action. It was claimed that the plaintiffs never served Harnam Singh during his life time. It was also claimed that Harnam Singh executed a registered Will in favour of defendant No. 1 which was valid one and that the sale deed executed by defendant No. 1 was valid and legal. Other allegations of the plaintiffs were denied. After filing the replication, the following issues were framed :- 1. Whether the plaintiffs are the successors of Harnam Singh, as per pedigree table mentioned in para No. 1 of the plaint ? OPP 2. Whether the plaintiffs and defendant No. 1 are entitled to inherit the self acquired property of deceased Harnam Singh in equal shares ? OPP 3. Whether the will executed by deceased Harenam Singh was valid will ? OPD (amended vide order dated 2.12.85). 4. Whether the plaintiffs are entitled to get the partition of the property in dispute ? OPP 5. Whether the defendant No. 1 has sold the property in dispute as mentioned in plaint ? OPP 6. What is the extent of the share of the plaintiffs in the property in dispute left by deceased Harnam Singh ? OPP 7. Whether the suit is not maintainable in the present form ? OPP 8. Whether the suit is properly valued for the purposes of the court fee and jurisdiction ? OPP 9. Whether the suit is bad for misjoinder of party ? OPD 10. Whether the plaint is properly signed and verified by the duly authorised person ? OPP 11. Relief. All the issues were decided in favour of the plaintiffs-appellant and resultantly the suit was decreed.;