PREM CHAND Vs. LAL SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 28.3.2000 rendered by the learned District Judge, Hamirpur in Civil Appeal No. 78 of 1991.

(2.) MATERIAL facts necessary for the adjudication of this Regular Second Appeal are that the predecessor -in interest of Appellant No. 1, and Appellants No. 2 and 3 (hereinafter referred to as 'Plaintiffs ' for convenience sake) instituted a suit for declaration by way of permanent injunction that they were owners in possession of the land detailed in the plaint, total area 77 kanals 10 marlas as per jamabandi for the year 1980 -81 and the Respondents Defendants (hereinafter referred to as 'Defendants ' for convenience sake) have no right to interfere with the ownership and possession of the Plaintiffs in any manner whatsoever and it is also prayed alternatively that in case during the pendency of the suit, Defendants succeed in taking possession of any part of the suit land or the possession of the Plaintiffs is not found on any part of the suit land, then suit for possession. According to the averments contained in the plaint, the suit land was shown to be in the ownership and possession of Mahanti Devi. Total area of all the Khatas was 77 kanals 10 marlas as per jamabandi for the year 1980 -81 and in the remarks column there was entry with red ink regarding mutation No. 1055 about the inheritance of deceased Mahanti. Mahanti Devi was the aunt of Plaintiff No. 1 and maternal grand -mother of Plaintiffs No. 2 and 3, namely, Raghbir Singh and Bidhi Singh. She died on 21.5.1985. The Plaintiffs were serving Mahanti Devi and the relations were cordial. Even the Plaintiffs were cultivating the suit land during her life time. They were in possession of the suit land in the life time of Mahanti. Last rites of Mahanti were performed by the Plaintiffs. She executed a will Ex. P - 2 on 31.1.1985 in favour of the Plaintiffs, which was duly registered by the Sub -Registrar on the same day. This "will" was executed by Mahanti of her free will and she was in disposing mind. According to the plaint, Plaintiff No. 1 was to succeed qua 1/2 share and Plaintiffs No. 2 and 3 were to succeed the remaining 1/2 share. According to them, there were no legal heirs of Mahanti except the Plaintiffs. Defendants tried to prevail upon Mahanti Devi to execute some documents and on this, Plaintiffs filed a suit against Mahanti and she stated that she did not intend to execute other documents. The suit was decreed. It is further averred that the succession was open on the death of Mahanti on 21.5.1985. They have become owners of the suit land qua the share of Mahanti by way of "will". Mahanti Devi had not executed any "will" during her life time except the one mentioned above and if there is any such document that is fraudulently prepared after the death of deceased Mahanti has no bearing on the interest and title of the Plaintiffs qua the estate of Mahanti.

(3.) REPLICATION was filed by the Plaintiffs. Trial court framed issues on 17.12.1986. Trial court dismissed the suit on 27.5.1991. Plaintiffs preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 28.3.2000. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: