Smt. Sarjo vs Krishan Alias Shri Krishan and Another

Jaswant Singh, J.—The LRs of defendant No. 1-Balbir Singh and defendant No. 2-Rameshwar Singh both sons of Mange Ram along with LRs of defendant No. 4-Sukhbir Singh, defendant No. 6-Ram Chander, defendant No. 3-Abhey Ram and defendant No. 5-Malik Ram have filed the aforesaid two Regular Second Appeals arising out of Civil Suit No. 283 of 1996 by the contesting respondent No. 1/plaintiff-Krishan for permanent injunction seeking to restrain the defendants-appellants from alienating the suit land and also for dispossessing them. In short the dispute is in respect of half share of land measuring 29 kanal approximately in the joint land of one Sundu, who died intestate on 20.09.1976.

Dispute is between the sons of his sister Chandro namely plaintiff-Krishan and their collaterals claiming their share. Plaintiff-Krishan claims that on the death of his maternal uncle Sundu, his mother Chandro was entitled to half share being a surviving class-I heir. However, the entire share of Sundu was wrongly mutated in the name of his other surviving maternal uncle Bagru, being the brother of Sundu. The aforesaid defendants being collaterals claim, the said share through Bagru in view of a Will dated 11.07.1983 executed in favour of defendant Nos. 1 and 2 Balbir Singh and Rameshwar Singh. The said Bagru died on 07.05.1996 issueless being a bachelor. The aforesaid share of Bagru devolved on all the defendants by virtue of aforesaid Will by Bagru and accordingly a mutation in their favour was sanctioned on 26.06.1998. Thus the plaintiff-Krishan filed the aforesaid suit for injunction. The learned trial Court vide decree dated 05.03.2004 dismissed the suit as not maintainable, while returning the finding in favour of the plaintiff on issue No. 1 holding him to be joint owner of the suit property and while deciding the issue of the Will in favour of defendant No. 6.

Plaintiff-Krishan and all the defendants filed two appeals and the learned trial Court vide judgment and decree dated 01.03.2007 allowed the appeals holding the suit of the plaintiff to be maintainable. Simultaneously, the appeal filed by the defendants against the finding on issue No. 1 in favour of the plaintiffs by the trial Court, was dismissed. Hence the present aforesaid two appeals filed by the defendants and the LRs of the aforesaid defendants.

The aforesaid RSA No. 901 of 2007 was filed by the defendants against the dismissal of their appeal by the First Appellate Court, which was admitted vide order by this Court dated 31.03.2010. Subsequently, another RSA No. 1042 of 2010 along with application seeking condonation of delay of 1009 days in filing the appeal, was also filed by the defendants against the decision of First Appellate Court whereby the appeal of the plaintiff was allowed. It was held by the learned Lower Appellate Court that the mother of plaintiff-Krishan namely Chandro had a share in the property left behind by her brother Sundu.

During the pendency of the decision of the application for condonation of delay in RSA No. 1042 of 2010, another application bearing No. 7024-C of 2013 has been filed by the defendants/LRs of defendants for disposing of the present appeal as also the connected appeal No. 901 of 2007 in view of the compromise/affidavit dated 29.05.2013 of the plaintiff-Krishan, annexed with the application and that he has no objection if both the impugned judgments and decrees are set aside and a suit for injunction is dismissed as withdrawn.

Reply to the application seeking condonation of 1009 days delay has been filed. At the time of hearing Mr. Kulvir Narwal on instructions his contesting respondent No. 1-plaintiff who is present in Court submits that he has no objection if the delay of 1009 days in filing RSA No. 1402 of 2010 is condoned in view of the agreed stand taken above. Accordingly, the delay of 1009 days in filing the present appeal is condoned and the application (CM-7024-C-2013) is allowed.

Respondent No. 1 plaintiff, who is present in Court and has been duly identified by his counsel, admits the contents of the compromise and his affidavit dated 29.05.2013. He states that he has no objection if both the aforesaid Regular Second Appeals are allowed and the impugned judgments and decrees passed by the Lower Appellate Court set aside. His statement has been separately recorded.

In view of the aforesaid agreed stand, both the aforesaid appeals filed by the LRs of defendants are allowed and the judgment and decree dated 01.03.2007 passed by the learned Addl. District Judge, Jhajjar in both the appeals are set aside and the respondent-plaintiff Krishan is permitted to withdraw his suit. The suit is dismissed as withdrawn.