GIANI RAM Vs. OMPATI

JUDGEMENT

(1.) THIS regular second appeal has been filed against the judgments and decrees passed by the learned courts below decreeing the suit for declaration filed by the plaintiff-respondent No. 1.

(2.) THE plaintiff filed a suit for declaration to the effect that Munshi alias Handa and Ran Singh were entitled to inherit the estate of Chandu at the time of his death to the extent of half share each and mutation No. 2126 was said to have been wrongly entered and sanctioned on 12.1.1979 by the Assistant Collector II Grade, Hansi in the name of Munshi alone. It was claimed that out of the land measuring 99 kanals 11 marlas Chandu had 1/4th share in Khewat No. 161 and 1/40th share of land measuring 531 kanals 5 marlas comprised in Khewat No. 167 as per Jamabandi for the year 1977-78. It was claimed that the plaintiff and proforma defendant Nos. 6 and 7 were entitled to 1/240th share each of the share of Chandu who had 1/40th share in the suit land as detailed in the head-note of the plaint. They also claimed to be in possession of the same which now was comprised in Khewat No. 189 Khatauni No. 360 and 386 situated at village Narnaund District Hissar as per Jamabandi for the year 1987-88. The plaintiff along with proforma defendants also claimed 1/24th share each of 1/4th share of Chandu deceased in the land measuring 99 kanals 11 marlas which was said to be in possession of the plaintiff and now comprised in Khewat No. 181 and Khatauni No. 333/337 at village Narnaund Tehsil Hansi District Hissar. Mutation No. 2148 was also challenged which was sanctioned in favour of defendant Nos. 1 to 5 and their mother qua the share of Chandu. The partition proceedings were also challenged to be without jurisdiction, null and void and not binding on the plaintiff. Rapat Roznamcha No. 285 entered on 21.5.1992 was claimed to be a mere paper transaction. It was claimed that no possession was handed over in pursuance to the said Rapat Roznamcha and the plaintiff claimed herself to be a co-sharer in the Khewat in dispute. Injunction was also sought against defendant Nos. 1 to 5 from alienating more than half share of the estate alleged to have been inherited by Munshi from Chandu. The case of the plaintiff further was that one Kanshi had 5 sons. Chandu alias Chandgi Ram died issueless on 10.6.1975 and at that time his two brothers namely Munshi and Ran Singh were alive. Molu and Shiv Lal were said to have predeceased Chandu. The plaintiff along with defendant Nos. 6 and 7 claimed to be son and daughter of Ran Singh who died on 30.10.1977. His estate was inherited by the widow and two sons. The case of the plaintiff further was that after the death of Ran Singh, Munshi Ram in collusion with the revenue staff got entered and sanctioned mutation of inheritance of Chandu in his favour, whereas in the year 1975 when Chandu alias Chandgi Ram died, his brother Ran Singh was also alive and had succeeded to inheritance of Chandu to the extent of = share i.e. half share by Munshi and half by Ran Singh. Thus, mutation in favour of Munshi alone was claimed to be illegal, null and void. The case of the plaintiff was that her mother had expired whereas the wife of Munshi also expired after the death of Munshi. Munshi is said to have died in the year 1979 and mutation of inheritance of Munshi was sanctioned in favour of sons, daughter and widow which includes the share of Chandu alias Chandgi Ram. The plaintiff claimed that she was an illiterate lady and was told by the heirs of Munshi and her brothers that her share in the estate of Chandu has been given to her. It was about a month ago that she came to know that brothers of the plaintiff have joined hands with the sons of Munshi to grab the share of the plaintiff which has been succeeded by her from the estate of Chandu alias Chandgi Ram. Partition proceedings and mode of partition etc. by the Tehsildar were claimed to be illegal, without jurisdiction and non-est in the eyes of law and therefore, not binding on her. She claimed that she never appeared before the Tehsildar nor made any statement accepting the ownership of defendant Nos. 1 to 5 as mentioned in the partition application. The plaintiff claimed still to be the co-sharer in the land in dispute. It was claimed that defendants had refused to accept her claim in the property.

(3.) ON merit the pedigree table was admitted. It was also admitted that Kanshi Ram had 5 sons and that Chandu alias Chandgi Ram died unmarried and issueless. However, it was claimed that at the time of death of Chandu alias Chandgi Ram, Ran Singh was not alive and it was only the father of defendant Nos. 1 to 5 who was alive. It was claimed that after the death of Munshi the answering defendants became absolute owners in possession of the estate of Chandu. It was claimed that prior to his death, Chandu had effected a family settlement with the father of defendant Nos. 1 to 5 and delivered possession of his share under the said family settlement. Therefore, it was claimed that mutation of inheritance was rightly sanctioned in Jalsa Aam. The plaintiff and proforma defendants were said to be having knowledge of the same. It was claimed that said mutation has been entered in the Jamabandi for the years 1982-83 and 1987-88. It was claimed that the plaintiff along with her brothers accepted the said mutation to be correct. It was claimed that after partition the plaintiff had no right or title in the above said land. The death of Ran Singh on 30.10.1977 was denied and it was claimed that he died much earlier than the date mentioned. It was also claimed that fabricated entry regarding death of Ran Singh on 30.10.1977 was made. It was the case of the answering defendants that at the time of death of Chandu, Ran Singh was not alive, therefore, his right to succeed to the share of Chandu was denied and it was claimed that mutation sanctioned was proper. It was also the case of the contesting defendants that mutation of inheritance of Munshi was rightly sanctioned in favour of defendant Nos 1. to 5. It was also claimed that mutations of inheritance of Chandu and Shiv Lal were sanctioned in the presence of plaintiff and proforma defendants and they had thorough knowledge of the same. On these allegations the plea of estoppel was raised. It was denied that the plaintiff never appeared before the Assistant Collector or that she had no knowledge of the partition proceedings. It was claimed that the plaintiff along with her brothers had compromised the proceedings and partition was based on compromise. It was claimed that possession of the land was delivered to the defendants on 21.5.1992, on the basis of partition proceedings and therefore, claimed that the suit be dismissed. Defendant Nos. 6 and 7, however, admitted the claim of the plaintiff. Replication was filed wherein assertions made in the plaint were reiterated and that of written statement were denied.