MOHAN LAL AND ANR Vs. RASSI DEVI

JUDGEMENT

(1.) This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 16.2.2000, passed by the learned District Judge, Shimla, whereby the appeal filed by the appellants against the judgment and decree of the court of learned Sub Judge, Theog, dated 27.12.1996, decreeing the suit of the plaintiff, has been dismissed.

(2.) Briefly stated the facts of the case are that the respondent, hereinafter also referred to as the plaintiff, filed a suit for declaration and injunction against the appellants, hereinafter also referred to as the defendants. The plaintiff alleged that her father Mathu was a resident of village Kadaioug and was owner in possession of the land measuring 5 bighas comprised in Khasra Nos. 437/44 and 438/44, as detailed in the plaint. The plaintiff was the only daughter of the deceased Mathu. She was married and was living with her husband. Her father was an illiterate person of 70 years, was a patient of asthma and paralytic and was not having sound disposing mind. The defendants got mutation No. 944, dated 23.9.1988, attested in their favour in regard to the property of the deceased Mathu. The plaintiff alleged that she has inherited the property of her father and the mutation attested on the basis of some Will is not binding upon her and as the defendants are threatening to take possession, she filed the suit.

(3.) The defendants admitted that the plaintiff was the only daughter of Mathu and was married to one Mohan of village Balowa and three children were born out of the wedlock. It was alleged that the plaintiff left the house of her husband Mohan and came back to live with her father where she lived for two years and then she eloped with one Pritam Singh and never came back to live with her father. It was also pleaded that Het Ram, son of the plaintiff, who was of tender age, lived with Mathu till the year 1984. Mathu executed a Will in the year 1984 in favour of Het Ram, who was taken away from the house of Mathu by the plaintiff. There was none to look after and maintain Mathu. Defendants were neighbours of Mathu, helped Mathu in cultivation of his land and they also looked after him. The deceased executed the Will in a sound disposing mind in favour of the defendants on 14.4.1988 and thereafter the mutation was rightly attested in favour of the defendants.