DHANNO Vs. TUHI RAM

JUDGEMENT

(1.) JUDGMENT :- This is a defendants' appeal and has been directed against the judgment and decree dated 8-10-1985 passed by the Court of Shri A. S. Chalia, Additional District Judge, Sonepat by which he dismissed the appeal of defendant-appellants in a suit for declaration which was filed by the plaintiffs-respondents.

(2.) The brief facts of the case are that Sarvshri Tuhi Ram, Darma and Parbha sons of Puran filed a suit for possession to the extent of 1/2 share of the agricultural land on 14-10-1980 against the defendants, namely, Smt. Dhanno widow of Balbir Singh, (2) Bhopal, (3) Suraj Kumar and (4) Krishan, sons of said Balbir Singh, Jagmati daughter of Balbir Singh and Chattar Singh father of Balbir Singh deceased and the case set up by the plaintiffs was that Sarvshri Neki, Puran and Bhane are three sons of Raje. Smt. Parbhati at the first instance married with Bhane aforesaid and out of this wedlock Chattar Singh defendant No. 6 and Khajani were born. Tuhi Ram, Parbha and Dharma are sons of Puran. After the death of Bhane, Smt. Parbhati performed a "Karewa" with Shri Neki. Balbir Singh deceased was the son of Chattar Singh, defendant No. 6. Defendants Nos. 2, 3, 4 and 5 are the children of Balbir Singh and were born from the womb of Smt. Dhanno defendant No. 1. The plaintiffs alleged that Shri Neki died about 53 years ago, leaving behind Parbhati as widow who had one-third share in the land of Neki. Plaintiffs, Parbhati and Chattar Singh defendant No. 6 jointly owned and possessed agricultural land measuring 203 Kanals 19 Marlas in equal shares situated in the estate of village Chirasmi, fully described in para No. 3 of the plaint. Smt. Parbhati died in the year 1960 leaving no heir behind her. (This averment of the plaintiffs appears to be wrong because Smt. Channo DW 2 has been proved to be the daughter of Parbhati and Neki). The plaintiffs allege that they and defendant No. 6 became joint owners in possession in equal shares of the land mentioned above. Defendant No. 6 fictitiously showed his son Balbir Singh as adopted son of Smt. Parbhati in order to harm the rights of the plaintiffs. Smt. Parbhati was under the influence of defendant No. 6 Balbir Singh has since died on 16-3-1977 and mutation was illegally got entered of the share of Smt. Parbhati in the name of Balbir Singh. Said Balbir Singh never came into possession of any part of the land mentioned above throughout his life. Balbir Singh treated himself as son of Sh. Chattar Singh and not son of Parbhati. Defendants Nos. 1 to 5 also considered Balbir Singh as son of Chattar Singh defendant No. 6. At the time of alleged adoption, Balbir Singh was more than 15 years of age and as such no valid adoption took place. Smt.Parbhati was a very old lady and for several years, she remained confined to her bed. She had no power of understanding of her own and remained under the undue influence of defendant No. 6. No ceremony of the alleged adoption was ever performed in the village. Defendants Nos. 1 to 5, because of the wrong entry in the revenue record, claimed themselves to be the owners in possession to the extent of one-third share. The plaintiffs many a time asked the defendants to admit them as owners of the land to extent of one-half share of the entire land and hand over the possession of this land left by Smt. Parbhati, but to no effect. Hence this suit for possession.

(3.) Defendants appeared and filed written statements. It was the stand of the defendants that Smt. Parbhati adopted Balbir Singh on 4-6-1958 and on the same day, a registered will was also made in favour of Balbir Singh by Smt. Parbhati when she was in sound disposing mind and without any undue influence. The defendants admit that after the death of Sh. Bhane, Smt. Parbhati performed 'Karewa' with Sh. Neki. The death of Balbir Singh is also not disputed, who died on 16-31977. Objection was also raised by the defendants that the suit is not maintainable; that the same is barred by time and that the plaintiffs are estopped by their own act and conduct for filing the present suit.