BISHESHAR NATH Vs. SHANTI DEVI

JUDGEMENT

(1.) This regular Second Appeal has been filed by some of the defendants against the judgment and decree dated 6-9- 1983 passed by the Additional District Judge, Sirsa vide which the appeal filed by the plaintiff was accepted, the judgment and decree dated 31-8-1981 passed by the Trial Court were set aside and the suit of the plaintiff was decreed whereas the cross appeal filed by the defendant was dismissed.

(2.) The facts in brief are that Smt. Shanti Devi, widow of Bela Ram had filed a suit for declaration against the defendants to the effect that by virtue of the Will dated 4-8-1977 executed by Bela Ram deceased, the plaintiff was the owner in possession of 91 kanals 19 marlas of land and house Nos. 87,88 (4 marlas each) and one double storeyed shop (hotel) near bus stand Hansi and the entries made in the revenue record and the Municipal records to the contrary were liable to the corrected and consequently decree for permanent injunction was sought restraining the defendants from interfering in the title and possession of the plaintiff over the said properties. It was alleged in the plaint that the plaintiff was the widow whereas the defendants were the sons and daughters of Bela Ram deceased and that said Bela Ram had died on 5-2-1978. It was alleged that Bela Ram deceased had executed a Will dated 4-8-1977 during his lifetime to the effect that after his death, the suit property shall be inherited by the plaintiff exclusively as sole and full owner. It was alleged that the suit property was earlier in possession of Bela Ram deceased and after his death by virtue of the said Will the suit property was in possession of the plaintiff as sole and exclusive owner. It was alleged that the defendants fictitiously and cleverly got their names entered as co-sharers in mutation No. 399 dated 10-1-1979 in the absence of the plaintiff in respect of the agricultural land. It was alleged that the said mutation was illegal and in effective on the rights of the plaintiff and the same was liable to be set aside and the revenue entries were liable to be corrected accordingly. It was alleged that the defendants were threatening to alienate the suit property and to interfere in the lawful possession of the plaintiff thereon. It was accordingly prayed that in view of the aforesaid Will dated 4-8-1977 executed by Bela Ram deceased in favour of the plaintiff, the suit be decreed as aforesaid.

(3.) The suit was contested by defendant No 1 and 2, who filed a joint written statement alleging therein that the Will in question was forged and fictitious. It was alleged that house No. 87, 88 belonged to defendant No. 1 and 2, whereas the double storeyed shop belonged to defendant No. 2 and 3. It was alleged that the plot for the said shop was purchased vide sale deed dated 20-9-1963. It was alleged that Bela Ram deceased could not have willed away the aforesaid properties. With regard to the agricultural land, it was alleged that the same was the ancestral property qua such Bela Ram deceased and defendant Nos. 1 to 3 and as such Bela Ram deceased had no authority to execute the Will in respect of the said land. It was alleged that the land was original allotted to Bhagwan Dass in lieu of the ancestral land left by him in Pakistan and there was a dispute between Bela Ram and Bhagwan Dass regarding the share in the ancestral property including the land in dispute, who gave his award and the said award was made Rule of the Court vide judgment dated 8-1-1960 passed by Sub Judge, Hisar and in this way Bela Ram became the owner of the land in dispute, which he held as a Karta. It was alleged that the prayer of the plaintiff for getting the said Will registered after the death of Bela Ram was rejected by the Sub Registrar. It was further alleged that the petition in respect of the agricultural land was sanctioned in the presence of the plaintiff and the plaintiff had waived her rights in the agricultural land and was now estopped from filing the present suit. It was alleged that in fact, the plaintiff and the defendants were in joint possession of the suit land in view of the mutuation, which was sanctioned on 10-1-1979. Defendant Nos. 3 to 5 filed a joint admission written statement, admitting the claim of the plaintiff.