BHAIYALAL Vs. KASHI BAI

JUDGEMENT

(1.) The defendant has filed this second appeal aggrieved by the reversal of the judgment and decree passed by the trial Court. The trial Court dismissed the suit. The Appellate Court has allowed the appeal of the plaintiff and held the plaintiff to be owner to the extent of 1/4th share in the property and the plaintiff has been held entitled to obtain partition from the Revenue Court and to obtain separate possession and Bhaiya Lal, the defendant-appellant, has been declared to be the owner to the extent of 3/4th share. Cross objection has also been filed by the plaintiff/respondent challenging the factum of the Will and it has been submitted that without getting probate of the Will it was not open to the defendant to take advantage of the same in the Civil Court.

(2.) The plaintiff-respondent filed a suit for declaration of title and permanent injunction on the allegations that the plaintiff and defendant's father Pancha owned certain agricultural land comprising survey Nos. 165, 166, 167, 169,172,173,175, 240 and 304. The plaintiff was having half share in it. Pancha died ten days prior to filing of the suit. Defendant No. 1 and the plaintiff are the only heirs of Pancha being son and daughter. The plaintiff was called by her father prior to 10-12 years and she was residing along with her father As the defendant wanted to use the land which was being cultivated by the plaintiff in the life time of her father, Pancha handed over 1/4th share to the plaintiff in the presence of Panchas. She further pleaded that after death of Pancha in the remaining property she was having half share. There was partition between Pancha and other co-sharers and plaintiff and defendant were in possession of half of the share each, of the land belonging to Pancha. By way of amendment, plea was taken that Will dated October 21, 1987 submitted by defendant is a fraudulent document and was not executed by Pancha, He was not in a condition to execute the Will, Thus, the plaintiff sought a declaration that she be dedared owner to the extent of one half share in the property left by deceased Pancha who was himself having half share in the property and the defendant be restrained from interfering with the plaintiff's possession over the land in question and further from alienating the same.

(3.) The defendant in the written statement contended that Pancha died on June 10, 1990 and had executed a Will in favour of the defendant, Bhaiyalal The plaintiff was not cultivating the land nor residing with the defendant She was not in possession and was not entitled to any share in view of the Will executed by Pancha The plaintiff is not in possession, hence the suit for declaration and injunction is not maintainable.