RAKESH KUMAR GARG J. - (1.) THIS is defendants second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiffs has been decreed to the effect that they are co-sharers/co-owners to the extent of 3/5 share and defendant No. 1 Swaran Singh is co-sharer/co- owner of 1/5 share and the defendants No. 2 to 4 are co-owners/co-sharers in equal shares to the extent of 1/5 share and a preliminary decree for partition was passed.
(2.) BRIEFLY stated, the facts of the case are that the plaintiffs namely Charanjit Kaur, Manjit Kaur and Surjit Kaur filed a suit for separate possession by way of partition of the house in dispute as detailed in the head note of the plaint and situated at Kurali, Tehsil Kharar, District Ropar and for permanent injunction restraining the defendants from raising any construction. The plaintiffs submitted in their plaint that originally the house No. 102, Ward No. 4, Kurali was owned and possessed by Ujjal Singh and after his death the same was inherited by his wife, Kauro, through a Will dated 28.02.1988. After the death of Kauro the house in dispute was inherited by the plaintiffs and defendant No. 1 and mother of defendants No. 2 to 4 namely Swaran Kaur. Each inherited the 1/5 share. So the plaintiffs have 3/5 share and defendant No. 1 has 1/5 share and defendants No. 2 to 4 have 1/5 share in the house in dispute. The plaintiffs are entitled for separate possession of 3/5 share being owner of the same. There remains a dispute between the parties and hence the plaintiffs filed this suit for separate possession and injunction by way of partition. Notice of the suit was given to the defendants. Defendants filed written statement and denied the averments of the plaint and further submitted that house in dispute is ancestral and coparcenary property of defendant No. 1 and same is in possession of defendant No. 1. Earlier the house in dispute was owned and possessed by Tulsi, grand father of the defendants and later on it was occupied by Ujjal Singh, father of defendant No. 1 and after his death defendant No. 1 is in possession of the same being his ancestral house. The defendant denied the execution of Will dated 28.02.1988. The defendant denied the share of plaintiffs in the suit property. It was stated that after the death of Kauro house in dispute is owned and possessed by defendant Swaran Singh alone. Earlier a dispute arose between the wife of defendant No. 1 and his mother Kauro and the same was compromised on 03.02.1992. It was further averred that the suit is barred under the provision of Hindu Succession Act, so the defendant prayed for dismissal of the suit.
(3.) FROM the pleadings of the parties, the following issues were framed by the trial Court : 1. Whether the plaintiffs are co-sharers in the suit property ? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 3. Whether the suit is barred by the provisions of Hindu Succession Act ? OPD 4. Whether the plaintiffs are entitled to the separate possession of the suit property by way of partition ? OPP;