SANDEEP AND OTHERS Vs. FATEH SINGH AND OTHERS

JUDGEMENT

(1.) The present appeal has been preferred against the judgment and decree dated 07.03.2012 passed by the learned Additional District Judge, Jind, whereby the appeal filed by the appellants-plaintiffs against the judgment and decree dated 27.09.2010 passed by the learned Additional Civil Judge (Sr. Division), Jind, has been dismissed.

(2.) Appellants-plaintiffs have filed the suit for declaration to the effect that they are owner in exclusive possession of the suit land measuring 268 Kanals 16 Marlas out of 442 Kanal 18 Marlas detailed and described in the head note of the plaint situated in the revenue estate of village Dahola, Tehsil and District Jind. Defendants have no right, title, interest or connection with the aforesaid land. They are only the owner in possession of the remaining land measuring 174 Kanals 02 Marlas out of the total land measuring 442 Kanals 18 Mralas. Appellants-plaintiffs also challenged the revenue entries including mutation no. 3747. They also sought the declaration that defendant no.1-Fateh Singh is not the son of Mam Kaur, widow of Udmi Ram and is not entitled for inheritance of the estate of Mam Kaur qua the aforesaid land. In the consequential relief, they also sought the decree for permanent injunction restraining defendant no.1 from interfering into their peaceful and cultivating established physical possession and also restraining him from alienating the suit land in any manner.

(3.) As per averments in the plaint, plaintiffs and defendants are the collaterals and descendants of common ancestor namely Phullu. Phullu had three sons namely Jahria, Hamira and Ram Rattan. Udmi Ram was the original owner of the entire suit land. After his death, the land in question was mutated in favour of Mam Kaur vide mutation no. 1444 dated 12.05.1944. In the later jamabandi entries, the name has been entered as Mam Kaur. Out of the wedlock of Udmi Ram and Mam Kaur, no issue was born. To avoid any dispute between the collaterals, Udmi Ram somewhere between 1920-30 put the parties and their predecessors-in-interest in exclusive possession of the suit land to the extent of their share as Malkan without Malkana. They were given full rights to use the land as owner, but the ownership was not changed in their name in the revenue record. Since then, the plaintiffs are coming into exclusive possession of the suit land as mentioned in the head note of the plaint. Said Udmi Ram died in the year 1944. The plaintiffs remained in possession of the suit land without any interruption. After the death of Udmi Ram, mutation was sanctioned in favour of Maa Kaur on 12.05.1944 at Sr. No. 1444. In the later jamabandi entries, the name was mentioned as Smt. Mam Kaur. She used to live separately, but was served by all the collaterals. As the suit land was under the possession of the parties given by Udmi Ram, Smt. Maa Kaur in consultation and with the consent of all the collaterals with her free will executed a registered Will dated 06.08.1962 in favour of 18 persons mentioned in para no. 4 of the plaint, who were already in exclusive possession of the suit land. Said Will was executed by Mam Kaur in the presence of Dhan Singh Sarpanch, Ratia Lambardar and Chandgi Lambardar of village Dahola. After the death of Mam Kaur, none of the parties bothered to get the mutation entered and sanctioned in their favour according to the Will or otherwise on the basis of natural succession. Defendant no.1-Fateh Singh raised the disputed and attempted to get mutation no. 3747 entered and sanctioned in his favour, which was declared disputed. It is further pleaded that defendant no.1-Fateh Singh is not the son of Mam Kaur, widow of Udmi Ram. The name of the mother of Fateh Singh may be Maa Kaur, who was not the same lady who was the widow of Udmi Ram. Maa Kaur @ Mam Kaur had no issue at the time of death of Udmi Ram. That was the reason due to which Udmi Ram gave the land to his collaterals in his lifetime. If Fateh Singh would have been the son of Mam Kaur, then there was no need for her to execute the registered Will. Mam Kaur died on 07.05.1982. but, Fateh Singh did not get the mutation entered for about 20 years. Plaintiffs-appellants further pleaded that if defendant no.1 claims to be the owner of the suit land being the son of Mam Maur, then the plaintiffs have become the owners of the suit land by way of adverse possession. Appellants-plaintiffs claimed to be the owner in exclusive possession of the suit land on the alternative ground of adverse possession in addition to the Will allegedly executed by Mam Kaur. Hence the suit.