NIRMALA DEVI Vs. DHIAN SINGH

JUDGEMENT

(1.) The Defendants No. 1, 4 and 5 have filed this petition in which they have assailed order dated 13.3.2009 passed by the learned Civil Judge (Jr. Division), Dehra rejecting the application of Defendants No. 1 and 4 to strike out the counter claim of Defendant 3. The Petitioners No. 1 to 3 were Defendants No. 1, 4, 5 respectively in the suit. The Respondents No. 1 to 3 were Plaintiff, Defendants No. 2, 3 respectively in the suit.

(2.) The Plaintiff had filed a suit for declaration that he and Defendants No. 2 to 4 are joint owners in possession of the suit property in equal shares and are entitled to remain as such in equal shares. The entries in remarks column showing Defendant No. 1 as owner of the same on the basis of mutation of inheritance No. 389, 538 and 377 are liable to be set-aside. The land comprised in khasra No. 263 measuring 0-00-50 Hects. Vide jamabandi 1999-2000 situated at Mohal and Mauza Dhaliara and the shop situated thereon is owned and possessed by the Plaintiff and Defendants 2, 3 in equal share. The land comprised in Khasra Nos. 635, 666, 667,668, 1517/680, 671, 672, 673, 724, measuring 0-25-11 Hects. vide jamabandi 2003-04 in Mohal Gharthedu, Mauza Dhaliara and the house is owned and possessed by Plaintiff and Defendants No. 2 to 4 in equal shares. The entries showing Defendant No. 3 exclusive owner in possession of the same are wrong, null and void and deserve to be set-aside. The mutations of sale and gift do not affect the rights and title of the Plaintiff to inherit the suit property after the death of Babu Ram, who died intestate on 26.1.2006 leaving behind Plaintiff and Defendants No. 2 to 4 as his only heirs. Babu Ram had not executed any will, sale deed and gift deed during his life time. The Defendants in connivance with each other have put up false and fabricated will in favour of Defendant No. 1, false and fabricated gift deed dated 24.2.2004 and sale deed dated 24.1.1999 in favour of Defendant No. 2. The Plaintiff being the son has a right by birth and has inherited all the properties held by Babu Ram after his death alongwith his brothers and sister in equal shares and he is entitled to continue as such and the mutations attested in favour of Defendants 1, 2, 4 and 5 are wrong and illegal. A prayer for permanent prohibitory injunction restraining the Defendants from alienating, encumbering or changing the nature of the suit land and causing interference in the joint ownership and possession of the Plaintiff has also been made. In the alternative, suit for joint possession of the suit property was put-forth in case Defendants succeed in dispossessing the Plaintiff.

(3.) The suit has been contested by the Defendants No. 1 and 4 by filing joint written statement. They have pleaded that deceased Babu Ram had executed a legal and valid will during his life time on 25.12.2005 in favour of Defendants No. 1 and 4. The property in suit after the death of Babu Ram as per his will has been mutated in favour of Defendants No. 1 and 4, who are in possession as joint owners to the exclusion of other natural heirs. They have stated that sale deed (sic will) dated 20.1.1999 is not fictitious. Similarly gift deed dated 28.1.2004 and gift deed dated 24.2.2004 are legal and valid. The Defendants No. 1 and 4 in the written statement had prayed for dismissal of the suit.