KISHORI LAL Vs. LAJWANTI

JUDGEMENT

(1.) Instant petition filed under Art. 227 of the Constitution of India, lays challenge to judgment dated 20.7.2020 passed by learned Additional District Judge, Hamirpur (HP) in Civil Misc. Appeal no. 3 of 2020, affirming order dated 13.3.2020 passed by learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in C.M.A. No. 95 of 2019, whereby application having been filed by the petitioners-plaintiffs (hereinafter, 'plaintiffs) under Order XXXIX, rules 1 and 2 CPC, praying therein for restraining th respondents/defendant (hereinafter, 'defendants') from raising any construction or changing the nature of suit land i.e. land comprising of Khata No. 42 min, Khatauni No. 42 min Khasra Nos. 454, 455, 456, 457, 458, 459 and 460/2, kita 7, measuring 03-07-70 hectare and Khata No. 72, Khatauni No. 72, Khasra Nos. 399 and 400, Kita 2, measuring 00-03-38 Hectares as per Jamabandi for the years 2010-11, situate in Tikka Dhola Kuwal, Mauza Jassai, Tehsil Nadaun, District Hamirpur, Himachal Pradesh (hereinafter, 'suit land'), came to be dismissed.

(2.) For having a bird's eye view of the matter, certain undisputed facts as emerge from record are that the plaintiffs filed a civil suit before learned trial Court, seeking therein declaration to the effect that the suit land is an ancestral joint Hindu coparcener property of plaintiffs and defendants Nos. 1 and 2 and they have preferential right qua the suit land and sale deed No. 3/2019, dated 31.2019 in respect of land comprising of Khata No. 42 min, Khatauni No. 42 min Khasra Nos. 454, 455, 456, 457, 458, 459 and 460/2, kita 7, alongwith Tatima and Khasra No. 462, measuring 01-28-79 measuring 03-07-70 hectare, alongwith house of the plaintiffs existing over Khasra No. 457, 458 and 459 and sale deed No. 4/2019, dated 3.1.2019 executed by defendant No.1 in favour of defendants Nos. 3 and 4, subsequent mutations Nos. 178 and 179 dated 10.1.2019 are null and void, alongwith consequential relief of permanent prohibitory injunction, thereby restraining defendants from interfering in any manner in their possession. In the suit, plaintiffs pleaded that the suit land is an ancestral joint Hindu coparcener property of the plaintiffs and defendants Nos. 1 and 2 and they are owner-in-possession of the suit land and defendants are out of possession. Plaintiffs claimed that since the suit land has been inherited by defendant No.1 from her husband, Prema who himself inherited the same from his father, she had no right, whatsoever, to sell the same to defendants Nos. 3 and 4. Plaintiffs averred in the plaint that husband of defendant No.1, in the Will executed in her favour had written, "Lajwanti ki tehl sewa ke baad property le sakte hain." Plaintiffs while claiming that they are maintaining their mother, claimed in the suit that defendant No.1 is an old aged Pardanasheen lady and defendant No. 2 taking benefit of her old age, transferred the suit land without their consent and permission. Besides above, plaintiffs claimed in the suit that even otherwise, defendant No.1 was not competent to execute sale deeds as such, sale deeds Nos. 3/2019 and 4/2019, dated 3.1.1999, whereby suit land came to be alienated to defendants Nos. 3 an 4, behind their back, are required to be declared null and void. Plaintiffs claimed that the suit land is a commercial and agricultural land, which abuts Kangoo-Dhaneti road. House, cattle shed, toilet and water tanks of plaintiff No.1 are existing on Khasra Nos. 457, 458 and 459 and he had constructed his house in the year 1974 with the consent of his father and defendant No.1. It is further averred in the plaint that the plaintiffs came to know about sale deeds when defendants Nos. 3 and 4 threatened to dispossess them from the suit land.

(3.) Aforesaid claim of the plaintiffs came to be resisted by defendant on the ground that the suit land is not ancestral joint Hindu coparcener property of defendants Nos. 1 and 2. Defendants claimed that after execution of sale deeds Nos. 3/2019 and 4/2019, dated 3.1.2019, defendants Nos. 3 and 4 are in possession of suit land. Defendants claimed that defendant No. 1 after having inherited the suit land from her late husband, Prema, sold the same to defendants Nos. 3 and 4. As per defendants, late Prema had inherited the suit land by way of gift deed, which he subsequently bequeathed in favour of defendant No.1 by way of registered deed. Defendants claimed that since plaintiffs are not maintaining defendant No.1 nor are taking care of her, she, of her volition and in a fit state of mind, transferred the suit land in favour of defendants Nos. 3 and 4 for consideration. While denying claim of the plaintiffs that they have preferential right to purchase the property, defendants specifically stated in their written statement that there was no necessity of consent of the plaintiffs. Defendants also denied that the plaintiff No.1 had constructed his house in 1974 with the consent of his father and defendant No.1.