SATISH KUMAR MITTAL, J. - (1.) THIS is a plaintiff's Regular Second Appeal against the judgments and decree passed by both the courts below, whereby his suit for declaration was dismissed, whereas while finding him to be in possession of the suit property, a decree for permanent injunction was passed in his favour.
(2.) IN the present appeal, the dispute is about 16 Bighas 4 Biswas of agricultural land and two kacha houses situated in village Balian. The said property along with one pacca house (a Kothi) situated in Sangrur city (erstwhile Capital of Jind State) was owned by one Parshotam Dass. He was having three sons, namely Gurcharan Ram (plaintiff), Tejwant Singh and Tek Chand (defendants). Plaintiff Gurcharan Ram was illiterate and was residing in village Balian whereas his other two brothers were literate and were in Government service. During his life time, in the year 1954, Parshotam Dass partitioned his property among his three sons in a family settlement. The agricultural land and the kacha house situated in the village were given to the plaintiff and the pacca house situated in Sangrur was given to defendants Nos. 1 and 2. The said family settlement was subsequently got written on 27.7.1954, which was duly thumb marked and signed by Parshotam Dass and his three sons and was attested by the witnesses. Three copies of the family settlement were prepared and handed over to all the three brothers, which were duly signed by all the parties. According to the family settlement, all the three sons took possession of their respective share of the property, which fell to their share. Thereafter, on 4.12.1960, Parshotam Dass expired. After his death, mutation of inheritance with regard to the agricultural land measuring 16 Bighas 4 Biswas situated in village Balian was sanctioned in favour of all the three brothers. The pacca house situated in city Sangrur throughout remained in possession of the defendants, the two brothers, in equal shares, which they got in the family settlement and they raised further construction in their respective portion, after obtaining permission. Plaintiff Gurcharan Ram never claimed any share in the house situated in Sangrur. Similarly, Tek Chand (defendant No. 2), one of the brothers, did not stake any claim in the agricultural land and the kacha house situated in the village. However, in the year 1980, when defendant No. 2 by taking advantage of the entries in the revenue record started claiming a share in the agricultural land and tried to oust the plaintiff from the same, he filed the present suit for declaration and permanent injunction, claiming himself to be owner in possession of the suit land under the aforesaid family settlement dated 27.7.1954, Ex.PA and Ex.PC. Tek Chand (defendant No. 2) did not contest the suit and admitted the claim of the plaintiff. However, Tejwant Singh (defendant No. 1) vehemently contested the suit. He denied if during the life time of Parshotam Dass, any family settlement took place in between the parties. The thumb impression of Parshotam Dass on the alleged settlement was disputed. It was alleged that even if there is any family settlement, the same was never acted upon and it is inadmissible in evidence for the reason of its being not registered and having not properly stamped. It was further alleged that after the death of Parshotam Dass, the mutation of inheritance in respect of the agricultural land was sanctioned in favour of all the three brothers in equal shares. The said mutation was sanctioned in presence of the plaintiff, therefore, by his act, he is debarred from instituting the present suit, challenging the said mutation. According to him, disputed property situated in village Balian and the pacca house situated at Sangrur, which were owned by their father Parshotam Dass, were joint property of all the three brothers, after the death of their father. It was denied that the plaintiff was in exclusive possession of the agricultural land. It was also alleged that the suit filed by the plaintiff was time barred.
(3.) ON the pleadings of the parties, the following issues were framed : 1. Whether the plaintiff is exclusive owner in possession of the suit land on the basis of alleged partition deed effected on 27.7.1954 ? OPP 2. Whether the plaintiff is entitled to declaration and injunction prayed for ? OPP 3. Whether the suit is barred by time ? OPD 4. Whether the plaintiff is estopped from filing the suit by his act and conduct ? OPD 5. Whether the plaintiff has become owner of the suit land by way of adverse possession ? OPP 6. Whether the defendants are estopped from challenging the ownership of the plaintiff as pleaded in the amended plaint ? OPP 7. Relief. The trial court, after taking into consideration the evidence led by the parties, came to the conclusion that a family settlement dated 27.7.1954 was executed between the parties. It has been proved that the said family settlement was signed by all the three sons and thumb marked by their father Parshotam Dass. The thumb impression of Parshotam Dass on the said family settlement has been proved by Diwan K.S. Puri, handwriting and finger prints expert. It has also been found that the family settlement is admissible in evidence and the same does not require any registration, because it does not create any interest in the property, but the same recognize the pre-existing rights of the parties. In this regard, reliance was placed upon the decision of the Supreme Court in Kale and others v. Deputy Director of Consolidation and others, AIR 1976 Supreme Court 807. However, the trial court came to the conclusion that the said family settlement was not acted upon either during the life time of Parshotam Dass or even after his death. It was also held that the suit filed by Gurcharan Ram is barred by limitation, as the cause of action accrued to the plaintiff, when mutation of inheritance with regard to his agricultural land was sanctioned on 7.2.1962 in favour of the three brothers. It was also held that since the mutation of inheritance was sanctioned in the presence if the plaintiff, which he never challenged by filing an appeal or revision till filing of the suit, the plaintiff was estopped from filing the present suit by his act and conduct. It was also found that the plaintiff was not in exclusive possession of the suit land, but he was cultivating the same as a co-sharer, on behalf of both the defendants and himself. In view of these findings, suit of the plaintiff was dismissed.;