SUSHILA Vs. RAJINDER NATH

JUDGEMENT

(1.) This is defendant's second appeal against whom suit for declaration was dismissed by the Trial Court, but was decreed in appeal.

(2.) The land in dispute belonged to Suraj Bhan son of Anang Pal, as a Mohetmim. According to the allegations in the plaint, Shebait rights used to devolve upon by way of inheritance from times immemorial and that Shebait had a right to alienate his right more particularly by way of acceleration of succession. The case of the plaintiff is that he is the daughter's son of Suraj Bhan who adopted him a son when he was hardly 13 years old, on the basis of adoption deed dated 10.5.1957. Lateron the said Shebait gifted away his right in the land in dispute on the basis of gift-deeds dated 29.12.1950 and 30.12.1958. During the life time of Suraj Bhan, mutation of inheritance was sanctioned in favour of the plaintiff in respect of the properties situated in village Masampur, Zainpur and Biharipur, but mutation could not be sanctioned relating to properties situated in the revenue estate of village Nangal Kalia, Antri, Chepra Bibipur, Bhunkurka and Kamahia. After death of Suraj Bhan, a dispute had arisen in respect of the properties in dispute. Hence, the necessity of finding the present suit for declaration.

(3.) The suit was contested by defendants No. 1 and 2 alone on plea that the properties in question belong to Mandir Thakurji Maharaj and Suraj Bhan was a mere Shebait in possession of the properties in that capacity. However, it was admitted that the Shebait right used to devolve by way of inheritance. It was denied that Suraj Bhan was competent to alienate his right way of gift or otherwise. The gift deeds were alleged to be void and illegal qua their interests. According to the defendants, they were entitled to inherit the estate left by Suraj Bhan, being his daughter's son. The Trial Court found that the plaintiff is not the exclusive owner and Mohtemim and in possession of the said properties. He has got only 1/4th share therein. It was further found that the plaintiff was duly adopted by Suraj Bhan (deceased). Ultimately, the plaintiff was granted a declaratory decree that he is the Shebait (Mohtemim) to the extent of 1/4 share of the properties. Dissatisfied with the same, the plaintiff filed the appeal. The learned Additional District Judge came to the conclusion that the Shebait was competent to transfer his Shebait rights by way of gift in favour of Rajinder Nath to the exclusion of his daughters and therefore, the findings of the Trial Court in this behalf were reversed. It was further found that a perusal of the gift deed would show that Suraj Bhan (Deceased) only transferred his Shebait rights in favour of the plaintiff and thus, it could not be said that Doli tenure was ever transferred to the plaintiff. In view of these findings, the plaintiff's suit was decreed.