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Gurcharan Singh & Ors v. Babu Singh - RSA-4424-2002 [2006] RD-P&H 916 (17 February 2006)


R.S.A. No. 4424 of 2002

Date of Decision: February 2, 2006

Gurcharan Singh and others



Babu Singh


Present:- Mr. Munishwar Puri, Advocate

for the appellants.



The defendant having concurrently lost before both the Courts below has approached this Court through the present Regular Second Appeal.

The plaintiff who is the real brother of the defendant, filed a suit for declaration claiming that father of the parties Wazir Singh had died about 20 years back and thereafter, the two properties left behind by him were jointly owned by the parties and taking advantage of fact that the defendant was elder brother and was karta of the joint Hindu family, the defendant claimed that he was exclusive owner of the suit property.

The defendant contested the suit. It was claimed by him that the property in question was exclusively owned by him since the day of allotment in his name. It was also claimed that he had built shops on the said property and R.S.A. No. 4424 of 2002 [2]

through a family settlement with his own wife the property in question had fallen to his share.

The learned trial Court decreed the suit filed by the plaintiff. It was held that the property in question was originally owned by Wazir Singh, the father of the parties and after his death, it fell to the share of both the parties in equal share. Consequently, the suit of the plaintiff was decreed. An appeal filed by the defendant also failed before the learned first Appellate Court. The findings recorded by the learned trial Court were affirmed.

Mr. Munishwar Puri, the learned counsel appearing for the defendant- appellant has argued that the family settlement was in between the defendant and his wife and it was on that basis that the defendant had claimed the exclusive title to the suit property. It has also been argued that mere suit for declaration was not maintainable.

I have given my thoughtful consideration to the aforesaid contention.

I find myself unable to accept the same.

Firstly, it was not in dispute that the property had been allotted to Wazir Singh, father of the parties. On his death in the absence of any Will etc. set up by the deceased, the property was to devolve upon the two brothers in equal shares. If the defendant was claiming any exclusive title to the suit property, then he was required to prove the said title by leading the evidence. No such evidence has been led by him. In these circumstances, if the parties are co-sharers in the suit property, the suit filed by the plaintiff was absolutely maintainable.

R.S.A. No. 4424 of 2002 [3]

Nothing has been shown that the findings recorded by both the Courts below suffer from any infirmity or are contrary to record.

No question of law, much less any substantial question of law, arises in the present appeal.


February 2, 2006 (VINEY MITTAL)

sanjay JUDGE


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