CHITRU DEVI Vs. RAM DEI

JUDGEMENT

(1.) This is plaintiff's second appeal under S. 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 29-9-1997 of Disrict Judge, Kullu in Civil Appeal No. 33/1996 whereby the appeal of defendants Nos. 1 and 2 (respondents Nos. 1 to 3 herein) against the judgment and decree dated 20-11-1996 of Senior Sub Judge, Kullu has been partly allowed thereby setting aside the judgment and decree of Senior Sub Judge, Kullu passed in Civil Suit No. 133/92. Hereinafter the parties are referred to as the plaintiff and the defendants.

(2.) The facts giving rise to the filing of the present appeal are that plaintiff Smt. Chatru Devi filed suit for declaration that she along with defendant No. 4 Smt. Jagtamba Devi are owners in possession of the land to the extent of 1/3rd share measuring 21.12.0 bighas as described in para 1 of the plaint situate in Phati Shilihar, Kothi Kotkandi, Tehsil and District, Kullu (hereinafter referred to suit land) and the mutation No. 4361 attested by the Revenue Authority on 12-3-1992 was illegal, void and inoperative and not binding on her and that gift deed executed by defendant No. 1 Smt. Ram Dei in favour of Jagar Nath, defendant No. 5, dated 10-4-1992 of 3/173 share was also illegal, void and inoperative. Consequential relief of permanent prohibitory injunction restraining defendants 1 to 3 from interfering in her ownership and possession was also claimed. It was the case of the plaintiff that the suit land was owned by one Teku alias Tek Ram who was married to Smt. Devku and out of their wed-lock three daughters, namely, Chitru (plaintiff), Jagtamba (defendant No. 4) and one Hardei were born. Hardei died unmarried and Smt. Devku also died during the lifetime of Teku. Teku resided in village Kahudar and in lieu of the services rendered to him, he executed Will Ext. PA registered on 28-8-1972 in favour of the plaintiff bequathing land measuring 4.16.0 bighas and as such she is in possession of the said land. Teku died on 17-12-1981 and his last rites were performed by her and the suit land was inherited by her and defendant No. 4 Smt. Jagtamba Devi in equal shares. One Tap Dassi, grand-mother of defendants Smt. Sheela and Smt. Dharma daughters of Sidhi Singh get mutation No. 4361 attested and sanctioned in her favour; in favour of defendants 2 and 3 and the plaintiff and defendant No. 4 in connivance with revenue officials claiming herself to be widow of Teku. It was stated by the plaintiff that Teku never married Tap Dassi and Sidhi Singh was not their son and as such the said mutation was illegal, void and inoperative. Tap Dassi died on 18-11-1990 and on her death defendant Nos. 1 to 3 on the basis of wrong and illegal entries recorded in their names in the revenue record and in favour of Tap Dassi, openly threatened to interfere in the peaceful ownership and posssession of the plaintiff with ulterior motive. Defendant No. 1 Smt.Ram Dei had executed gift deed dated 10-4-1992 in favour of defendant No. 5 Jagtar Nath whereby 0-3-0 biswas of land had been given to him and as she had no right, title and interest in the suit land and as such defendant No. 1 was not competent to execute the said gift deed. On these premises the suit came to be filed.

(3.) Defendant Nos. 1 to 3 in their written statement resisted and contested the suit inter alia raising preliminary objections of limitation, estoppel and locus standi. On merits they pleaded that the plaintiff and defendant No. 5 are not the daughters of late Teku and in fact Teku had married Tap Dassi and from their wed-lock one son by the name Sidhi Singh and one daughter Man Dei (since deceased) were born. Sidhi Singh pre-deceased Teku and after the death of Teku the entire estate was inherited by his widow Smt. Tap Dassi; defendant No. 1 widow and defendant Nos. 2 and 3 daughters of Sidhi Singh. They stated that they are exclusive owner in possession of the suit land and Teku had not executed any Will in favour of the plaintiff and the alleged Will dated 28-8-1972 was forged and fictitious and shrouded with suspicious circumstances. The averments of the plaintiff that she performed last rites of Teku were denied and it was also denied that the plaintiff and defendant No. 4 inherited the estate of Teku after his death. Thus, they pleaded for dismissal of the suit of the plaintiff.