SUREKHA Vs. GENERAL PUBLIC

JUDGEMENT

(1.) The present appeal has been preferred by the plaintiff-appellant (Surekha) against concurrent findings returned by both the Courts while dismissing her suit for declaration with consequential relief of injunction.

(2.) Brief facts relevant to be noticed in the present case are that the plaintiff-appellant (Surekha) herein filed a suit for declaration being Civil Suit No. 144-A. Smt. Kamlesh, who is the defendant- respondent No. 4 herein, also filed a suit for declaration and mandatory injunction with consequential relief of permanent injunction. Both the said suits relate to the same property and were consolidated vide order dtd. 2/9/2014. Civil Suit No. 144-A titled Smt. Surekha Vs. General Public and others was treated as the main case and the evidence was led in the same. The said suit was filed by the plaintiff-appellant (Surekha) averring that she had become owner in possession of residential house consisting of two bed rooms, kitchen, DRG/Dinner, bathroom, verandah etc. on the ground floor, DRG/dinner, kitchen, bathroom, two bed rooms, verandah and toilet etc. on the first floor, and two rooms, toilet, terrace etc. on the second floor as mentioned in the site plan, measuring 1440 sq. ft. i.e. 24'X60' constructed on plot No. 128, HUDA Sector-7, Gurgaon on the basis of a Will dtd. 23/9/2012 executed by Smt. Vidyawanti, mother-in-law of the plaintiff-appellant (Surekha). It was further averred that the plaintiff-appellant (Surekha) was entitled to get herself recorded and entered as owner in possession of the suit property in the municipal record and in other Government departments. As a consequential relief, it was prayed that injunction be granted restraining the defendant-respondent Nos. 2 to 4 from dispossessing her from the suit property forcibly and illegally. It was the case set up by the plaintiff- appellant (Surekha) that defendant-respondent Nos. 2 and 3 (Rohit Tikka and Kamna Tikka) were the son and daughter of the plaintiff-appellant and that the defendant-respondent No. 4 (Kamlesh) was the daughter of deceased Vidyawanti. It was averred that the property was earlier owned and possessed by Shri Manohar Lal who purchased the same vide sale deed dtd. 7/1/1980. Manohar Lal died leaving behind his two sons Ajay Kumar and Janak Raj and one daughter Kamlesh. Ajay Kumar, the husband of the plaintiff-appellant (Surekha) died on 13/6/2006 and Janak Raj died on 18/2/2002. During their lifetime Janak Raj and his sister (Kamlesh) had relinquished their shares in the suit property in favour of their mother Smt. Vidyawanti and had got the house transferred in the name of Smt. Vidyawanti who became the exclusive owner of the suit property. It was further the case that the plaintiff-appellant (Surekha) and her family members were living with Smt. Vidyawanti and had been looking after and serving her till her death. Smt. Vidyawanti is stated to have died on 5/1/2013 and pleased with the services of the plaintiff-appellant (Surekha), she had executed a legally valid Will in her favour on 23/9/2012. It was further averred that the defendant-respondent Nos. 2 to 4 i.e. her son, daughter and sister-in-law, at the instance of some relatives had started giving threats and, hence, the civil suit. The defendant-respondent Nos. 2 and 3 i.e. children of the plaintiff-appellant (Surekha) filed their admitted written statement. Thereafter, none appeared on their behalf and they were proceeded against ex parte vide order dtd. 2/1/2013. A separate written statement was filed by the defendant-respondent No. 4 (Kamlesh) in which she raised several preliminary objections regarding maintainability of the suit, plaintiff-appellant being neither owner nor in exclusive possession of the suit property, the suit being hopelessly barred by law, etc. On merits it was averred that the plaintiff-appellant (Surekha) had not approached the Court with clean hands and the suit property was earlier owned by Manohar Lal who died intestate leaving behind Smt. Vidyawanti (widow), Janak Raj and Ajay Kumar (sons) and the defendant-respondent No. 4 (daughter). Janak Raj was married to Smt. Usha who after the death of Janak Raj married some other person and left a note regarding having nothing to do with the suit property. During the lifetime of Smt. Vidyawanti a mutation was got entered in the record of rights with the consent of both her sons. However, the said mutation created no right in favour of Smt. Vidyawanti regarding the suit property and after her death the defendant-respondent Nos. 2 and 3 and the answering defendant-respondent No. 4 became joint owners of the suit property. It was further averred that during the lifetime of Smt. Vidyawanti the defendant-respondent No. 4 (Kamlesh) lived on ground floor of the suit property while the first floor and second floor were occupied by the plaintiff-appellant (Surekha) and the defendant- respondent Nos. 2 and 3. It was further averred that earlier the plaintiff-appellant had filed a suit for declaration titled "Surekha Vs. Smt. Vidyawanti" on 30/11/2012 in which the plaintiff- appellant (Surekha) had alleged that on 10/9/2012 an oral family settlement had been entered into and the property was given to her exclusively. However, in the present suit a forged and fabricated Will dtd. 23/9/2012 had been set up. It was further averred that the Will was never executed by Smt. Vidyawanti. In her replication the plaintiff-appellant (Surekha) denied the contents of the written statement and reiterated the contents of the plaint.

(3.) On the basis of the pleadings of the parties the following issues were framed :