- (1.) THE appellant � defendant Keshrimal s/o Gebi Ram filed the present first appeal under Section 96 of CPC in this Court on 21.02.1985 being aggrieved by the judgment and decree of the learned trial court of District Judge, Balotra, district Barmer dated 07.11.1984 decreeing the Civil Suit No. 27/79 Harak Chand s/o Hazari Mal Bagrecha vs. Keshrimal s/o Gebi Ram for mandatory injunction, possession and compensation.
(2.) THE suit was filed on 14.08.1973 by the plaintiff Harak Chand s/o Hazari Mal with the plaint averments that in Garh Siwana, there is an ancestral house of the plaintiff as per the description and neighbourhood given in the plaint and the said residential house in question, there are two equally and similarly constructed portions with a common outlet door on the western side and the northern portion to the house is of the plaintiff, whereas the southern portion of the house belongs to the defendant and they are in possession of the respective portions since Samwat Year 1990. The plaintiff � respondent further averred that the father of the defendant Keshri Mal, Shri Gebi Ram had mortgaged his half portion of the said house in the Samwat Year 2012 with one Pukhraj Bachhraj Bagrecha on 16.10.1955 for the loan of Rs.2,201/- and executed a Rent Note in favour Pukhraj Bachhraj Bagrecha as the defendant continued to live in the said half portion of the house and the plaintiff in connection with his business was living mostly in Gujarat and in January 1972 when he came back from Gujarat, he found that the defendant had demolished the staircase of his portion of the house and had also damaged one room under the said stair case and upon information by a post card given by one Multanmal Aasuji Bagrecha dated 06.01.1972(Ex.8A), he came and found the said demolition and thereupon he filed a complaint in the court of learned Munsif Magistrate, Balotra under Sections 451 and 380 IPC and thereupon in a mutual settlement in the community Panchayat, a written compromise deed was executed by the defendant Keshrimal on 27.01.1972, in which the defendant again admitted that the north portion of the said house belonged to the plaintiff Harak Chand and his portion was only the southern portion of house and they would construct a common wall between the two portions and will not interfere with the possession of each other.
(3.) THE defendant Keshrimal in his written statement filed in present suit, however, stated that the entire house belonged to the defendant only and entire house was in his possession only from the time of his ancestors and the plaintiff did not have any share in that property and no partition in the Samwat year 1990 took place between their ancestors and nor any mortgage deed was executed in favour of Pukhraj Bachhraj Bagrecha by his father Gebi Ram and the document, if any, was created by collusion of plaintiff Harak Chand and Pukhraj Bachhraj. The defendant also stated in the written statement that one Ladu Ram had four sons being Hazari Mal, Aasuram, and Vansraj, out of which one son Hazari mal had gone in adoption by one Magna Ji and second son Aasuram was adopted by one Fauja Ji and third son Vansraj was adopted by one Shivdan and thus the three sons of grandfather Ladu Ram had been adopted by three different persons and, therefore, the said residential house devolved on Gebi Ram, the fourth son of Ladu Ram and through him on to the present defendant Keshrimal s/o Gebi Ram.;