SHER SINGH Vs. ISHRA BAI

JUDGEMENT

(1.) SUIT filed by the plaintiff Ishra Bai was dismissed by the learned trial Court vide judgment and decree dated 03.01.2011. Appeal preferred against the said decree succeeded and was accordingly accepted. And suit of the plaintiff was decreed. That is how the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) ISHRA Bai filed a suit for injunction, wherein, she claimed herself to be the sister of the defendants, and they being sons and daughter of deceased Makhan Singh. Originally, Makhan Singh, father of the parties, was the owner in possession of the land measuring 43 kanals 19 marlas. Makhan Singh was stated to have died on 22.08.1991 and the parties to the lis were his only heirs. The estate of Makhan Singh was inherited by the plaintiff and other heirs of Makhan Singh to the extent of 1/7th share each i.e. 6K -6M each out of the suit property. It was maintained that Makhan Singh never executed any Will in favour of the defendants and the said defendants after the death of Makhan Singh, in the year 2006, got prepared a false and fabricated Will, which did not bear the thumb impressions of said Makhan Singh. Said Will dated 15.06.1991 was unregistered and fabricated document and was anti dated. The said document was got prepared by the defendants in connivance with the revenue officers and thereafter, on the basis thereof, defendants managed to get the mutation entered and sanctioned on 16.03.2006 at the back of the plaintiff. It was averred that the plaintiff never appeared before any revenue officer at the time of sanctioning of the mutation. In fact, plaintiff acquired knowledge about this illegal act of the defendants in the month of March 2007 when she got the copy of the revenue record from Halqa Patwari. It was pleaded that the plaintiff and defendants were legally entitled to inherit the land measuring 6K -6M each out of the suit property and it was further submitted that the defendants could alienate the suit land only to the extent of 6K -6M each and not more than their respective share. Thus, the suit land was purported to be joint between the parties and was yet to be partitioned.

(3.) ON an analysis of the matter in issue and the evidence on record, learned trial Court was of the view that Ex. D2 showed the possession of the defendants and till date plaintiff had not challenged the said mutation or Will and as such, the simple suit for injunction was not maintainable. Further, the documents on record i.e. jamabandis and khasra girdawaris apparently showed that the defendants had become owners to the extent of 1/4th share each and when they were being shown to be owners in revenue record, which is per se admissible, they could not be restrained from alienating any khasra number or more than 1/7th share each. Therefore, no injunction could be issued against a lawful owner of the property. Accordingly, the learned trial Court vide judgment and decree dated 03.01.2011 dismissed the suit.