HARBANS SINGH Vs. KUNDAN LAL

JUDGEMENT

(1.) The plaintiff is the appellant, who, after having lost before both the learned courts below, has filed the instant appeal. The parties shall be referred to as the "plaintiff" and "defendants".

(2.) The plaintiff filed a suit for declaration and permanent prohibitory injunction against the defendants alleging therein that Smt. Mathru Devi, who was mother of the plaintiff, defendant and proforma defendants, was in possession of the suit land comprised in Khata/Khatauni No. 55/78, Khasra No. 476min and measuring 210 bighas, situated in Mauza Dehun, Pargana Bageri Khurd, Tehsil Kandaghat, District Solan, H.P. Though, the suit land had been recorded in the ownership of the State Government, but by operation of law, the land was owned by the plaintiff as he was in open, continuous and hostile possession of the same. Smt. Mathru Devi had been living with the plaintiff and being the elder member in the family, possession was recorded in her name. However, the house comprised in Khasra No.476 min consisting of three rooms, one cowshed and orchard of Plum, lemon in khasra No.5 had been constructed and planted by the plaintiff about 36 years back. It was further averred that the defendant No.1 by taking undue advantage of the old age of Smt. Mathru got executed a false, illegal, forged Will, which was got registered on 25.10.1995 in connivance with Kali Ram and Leela Dutt who were alleged witnesses to the Will and on the basis of the Will, defendant No.1 was threatening to dispossess the plaintiff from the suit property. Hence, the present suit.

(3.) The defendants contested the suit by filing written statement inter alia taking preliminary objections regarding maintainability, nonjoinder of necessary parties i.e. State of Himachal Pradesh. It was denied that the plaintiff was in possession of the suit land and he had been residing with Smt. Mathru. Neither any house was constructed nor any orchard was planted by the plaintiff. Since Mathru had been deserted by her husband, she was living with her brother Bansi Ram. Since Bansi Ram had no progeny, he gifted his house in the land situated in village Dehun including the share in Shamlatdeh and Abadideh as well as jungle etc in favour of Smt. Mathru vide registered gift deed No.111 dated 29.8.1972. Smt. Mathru Devi along with Kundan Lal, defendant No.1 had been living in the aforesaid houses. Since the houses and cowsheds were old and in dilapidated condition, defendant No.1 with the consent of Smt. Mathru in the year 1982 dismantled the old houses and constructed new double storied houses at the side of the old house and new cowshed and one room was also constructed near Nullah where cowshed was existing. In the shops, defendant No. 1 was running grocery business and Dhaba in the first floor and the the remaining land had also been coming in physical possession of the defendant as he had planted about 1015 trees of Plum and 23 trees of lemon about 1516 years ago. The plaintiff had got no concern either with the house or the suit land in any manner. It was claimed that no doubt Smt. Mathru was suffering from paralysis for three years before her death, but she was mentally fit and it was defendant No.1, who had been residing with her and looking after her. It was claimed that due to love and affection, she executed the Will, dated 25.10.1995 in favour of defendant No. 1 in sound disposing mind out of her free will and volition. Even, the last rites of Mathru were also performed by defendant No.1.