KASUMA Vs. MAHILA BHOORI

JUDGEMENT

(1.) THE appellant/defendant no.2 has filed this appeal under Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 24.2.2011 passed by ADJ, Karera District Shivpuri in Civil Appeal No.18A of 2010 confirming the judgment and decree dated 19.7.2010 passed by the court of I Civil Judge, Class 2, Karera in Civil Suit No.56A of 2009 whereby, the suit filed by the plaintiff for declaration of title and permanent injunction in respect of the land in dispute was decreed and the counter claim filed by defendant no.2 for declaration of title on 1/5th share was dismissed. In this appeal, the appellant is referred to as "defendant" and the respondent no.1 as "plaintiff''.

(2.) THE admitted facts of the case are that deceased Bhagwanlal was having 1/5th share in the disputed land and defendant no.2 to 4 are his daughters and defendant no.1 is his wife.

(3.) THE defendants no.1 to 4 by filing the joint written statement denied the plaint averments stating that the land in dispute has already been mutated in favour of the defendant no.2 Kusuma and hence, she is owner of the 1/5 th share in the property and in possession of it. She was residing with her father Bhagwanlal since very inception and look after him, hence, father Bhagwanlal executed a notarized will dated 9.11.2004 in her favour. Since, the suit filed by the plaintiff was not maintainable. Therefore, it was prayed that the suit be dismissed.