BHAGMAL Vs. SURJI ALIAS SURJI KAUR & OTHERS

JUDGEMENT

(1.) By this common judgment, I shall be disposing of two appeals bearing RSA No.24 of 2007 'Bhagmal v. Smt. Surji alias Surji Kaur and others' which is filed only by Bhagmal (defendant No.2) and RSA No.2214 of 2006 'Kokal and others v. Surji alias Suraj Kaur and another' filed by rest of the defendants against the judgment and decree of the Courts below by which suit filed by the plaintiff (Surji alias Suraj Kaur) has been decreed and Civil Appeal No.5 of 2002 'Bhagmal v. Smt. Surji alias Surji Kaur' filed by Bhagmal (defendant No.2) and Civil Appeal No.6 of 2002 'Kokal and others v. Surji alias Suraj Kaur' filed by rest of the defendants have been dismissed.

(2.) The case set up by the plaintiff, as it emerges from the plaint, is that the plaintiff and defendant Nos.1 to 3 are the children of Gulab and defendant Nos.4 and 5 are the sons of defendant No.1. It is alleged that the plaintiff is owner in possession of 1/4th share in the suit land measuring 125 Kanals 14 Marlas situated in village Bidawas and 204 Kanals 12 Marlas situated in village Dulhera Kalan. The decree in Civil Suit No.31/1970 dated 19.03.1970 titled as 'Chhanu etc. v. Gulab' in favour of defendant Nos.1 to 3 to the extent of 3/4th share of the suit property situated in village Dulhera Kalan, passed on the basis of a family settlement, was never executed within the prescribed period of limitation and as such it was not incorporated in the revenue record and after the death of Gulab, the plaintiff along with defendant Nos.1 to 3 inherited his estate in equal shares, but defendant Nos.1 to 3 obtained a fraudulent decree in Civil Suit No.582/1982 titled as 'Kokal etc. v. Smt. Surji etc.' on 19.10.1984 as the plaintiff was designedly proceeded against ex-parte and did not get incorporated the fact of the said decree in the relevant revenue record to keep it as a secret and then 1/4th share of defendant No.3 - Chhanu in the suit land was got transferred in favour of defendant Nos.4 and 5 vide another decree dated 17.01.1995 on the basis of which mutation No.409 and 1506 have already been sanctioned. It is alleged that the plaintiff came to know about the impugned decree on 03.07.1995 at the time when she was appearing in the Court of District Revenue Officer and after the matter was brought to the notice of the defendants, they refused to accede to her claim.

(3.) Defendant Nos.1 and 3 to 5 filed a joint written statement. The relationship between the parties was admitted, but the share of the plaintiff was denied on the ground that the decree dated 19.03.1970 suffered by Gulab was in respect of his self-acquired property situated in village Bidawas and Dulhera Kalan, but as that decree was not incorporated in the revenue record, due to the death of Gulab, the suit property was shown to have been inherited by the parties in equal shares vide mutation Nos.276 and 1175, whereas the plaintiff was never remained in possession of the suit land. It was alleged that the decree dated 19.10.1984 passed by the Sub Judge 1st Class, Rewari has attained finality, in which no fraud was played upon the plaintiff and on the basis of the said decree, District Revenue Officer has already passed the order sanctioning mutation in their favour. Defendant No.2 filed his separate written statement, in which he also admitted the relationship between the parties and denied the right of the plaintiff to the extent of 1/4th share, rather it was alleged that after the death of Gulab, she was only entitled to 1/16th share in the suit land. He also averred about the validity of the decree dated 19.10.1984.