MUKHTIAR KAUR Vs. BALBIR KAUR AND OTHERS

JUDGEMENT

(1.) The appellant-plaintiff is aggrieved of the judgment and decree rendered by the lower Appellate Court whereby the suit seeking declaration that she being the daughter of Mangal Singh having right by birth in the coparcenary property, is entitled to ?th share and permanent injunction restraining from selling the land.

(2.) Mr. Joshi, learned counsel appearing on behalf of the appellant-plaintiff submits that the appellant had instituted the suit stating wherein that Mangal Singh had died long time back and she being daughter, has share by birth in respect of land measuring 133 bighas 3 biswas and after death of Mangal Singh, Phimo and Bhan Singh came in possession of the aforementioned land. Phimo and Bhan Singh also expired and defendant No.1 is the widow of Bhan Singh and defendant Nos.2 to 6 are daughters and sons. The possession of the land remained with Phimo and Bhan Singh and thereafter, the aforementioned legal heirs. The status of the land, being coparcenary, has been proved through the excerpt Ex.P1 brought through the testimony of the revenue official. The plaintiff came to know that Phimo and Bhan Singh had sold most of the land and only land measuring 32 bighas 15 biswas was left. Even the mutation of the land in their favour was effected on 23.05.1961, therefore, death of Mangal Singh has to be construed from such date. The plaintiff requested the defendants many times to admit her claim but having failed to do so, the suit was filed in January, 1995.

(3.) The defendants contested the suit by filing the written statement, taking the objection that the suit is not maintainable and barred under the provisions of Order 23 Rule 1 CPC and also constructive res judicata, much less, under the provisions of Order 2 Rule 2 CPC.