RADHA Vs. JAMUNA DEVI

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 05.10.1998, passed by the learned District Judge, Shimla in Civil Appeal No. 62 -S/ 13 of 1996.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that the appellant -plaintiff, namely, Smt. Radha (hereinafter referred to as the plaintiff - for convenience sake) instituted a suit for permanent prohibitory injunction against the respondent -defendant (hereinafter referred to as the defendant - for brevity sake), restraining her from interfering in land bearing Khasra Nos. 2, 3, 4, 5 and 6, measuring 35 bighas, 19 biswas, situated in village Dhanain, Tehsil and District Shimla (hereinafter referred to the suit land - for convenience sake). According to her, the suit land was earlier owned by her father Trilok Chand and her fathers brother Amar Chand and that on the death of Trilok Chand, his half share in the land was inherited by her, her sister Prabha Devi, impleaded as proforma defendant No. 2, and her mother Jiwani and that on the death of Jiwani, she and her sister Prabha Devi inherited her share. She further pleaded that her fathers brother Amar Chand was un -married and issueless and on his death, which took place in February, 1989, she and her sister Prabha Devi inherited his share and thus she and the proforma defendant became joint owners, to the extent of one half share each of the entire suit land. She further claimed that the entire suit land was possessed by her and her sister Prabha Devi. She alleged that defendant without any right, title or interest in that land started interfering in her and proforma defendants possession over the suit land by making a false claim that she was the daughter of Amar Chand. It was further stated that the defendant Jamuna Devi moved an application for correction of entries in her favour to the Assistant Collector, Ist Grade, Shimla, but the said Assistant Collector dismissed her application with a direction that she should get her title established from the civil court.

(3.) The suit was contested by the defendant. According to her, the suit was not competent nor maintainable. According to her, the plaintiff was out of possession and was not entitled to the relief of injunction. On merits, it was stated that Amar Chand was the father of defendant and that on his death, she inherited his half share in the suit land. It was alleged that the defendant was in possession of Amar Chands share in the land as also in the house. According to her, Amar Chand had married a lady, named, Chandu long long back and from their wed -lock, defendant was born, but when the defendant was one and half years of age, divorce took place between Amar Chand and Chandu and thereafter Chandu settled with one Daulat Ram.