GAGAN SINGH (SINCE DECEASED) Vs. BIRBAL SINGH

JUDGEMENT

(1.) Review Petition No. 129 of 2019 &CMP(M) No. 105 of 2021 During the pendency of RSA No. 405 of 2004, before this Court, co-appellant No.1 (a) Kishni Devi, died on 29.11.2017. Though, some delay has occurred in the institution of the application at hand, however, given the good and sufficient cause made out in the application aforesaid, for, hence condoning the delay in, the, moving of the application before this Court, for begetting substitution of deceased co-appellant No. 1(a) by her LRs, hence the delay, if any, as stands occurred, stands condoned. Abatement, if any, stands set aside. Since the substitution of deceased co-appellant No.1 (a) by her LRs is imperative for a continuation of the lis, hence the application is allowed. Consequently, the LRs of deceased co-appellant No.1 (a) enumerated in paragraph 5 of the application, contents whereof stand supported by an affidavit are permitted to be substituted in her place.

(2.) The plaintiffs being aggrieved therefrom instituted, a, Civil appeal No. 39 of 2002, and, defendants also being aggrieved therefrom hence instituted a Civil appeal No. 41 of 2002, before the learned District Judge, Una, H.P., and, both the afore appeals were decided, under, a common verdict, being recorded thereon, on, 9.6.2004, (i) wherethrough, the plaintiffs' appeal, was partly allowed, and, defendants' cross appeal, stood dismissed, and, the verdict recorded by the learned trial Court was modified, in as much, as, (ii) the plaintiffs become declared to be owners, in possession, of, land comprised in old khasra No. 185 (new khasra No. 412,413,416 and 417), old khasra No. 307 (new khasra No. 568, 569,570,571,608,609,610,616,617 and 618, and, old khasra No. 273 (new khasra No. 601,603,647,655 and 656 situated in village Lakhroon, Tapa Muchhali, Tehsil Bangana, District Una, H.P., (iii) and, the entry to the contrary, showing the name, of, defendant, upon, the aforementioned suit land, stood declared, to be null and void, and, the defendants, are, further restrained, from, interfering in any manner, over, the possession of the plaintiffs, qua, the suit land.

(3.) The brief facts of the case are that the plaintiffs filed a suit for declaration to the effect that they are owners in possession of the land comprised in Khewat No. 29, Khatauni No. 31, Khasra Nos. 185 and 307 and half share in Khewat No. 61 min, Khatauni No. 191, khasra Nos. 273, 310 and 317 as per jamabandi for the year 1981-82 situated in village Lakhroon, Tappa Muchhali, Tehsil Bangana, District Una, (for short 'the suit land'). On the basis of registered will of 20.3.1979 executed by Kirpa Ram, grand-father of the plaintiffs and defendant No.1 and the consequential mutation No. 436 of 20.10.1979 in favour of defendant No.1 in respect of suit land is void. In effective, with a permanent injunction restraining the defendants from interfering in any manner over the suit land. According to the plaintiffs, the suit land mearing 11 kanal 1 marlas was owned and possessed by Kirpa Ram, grandfather of the plaintiffs and father of defendant No.1 and said Kirpa Ram died in village Hatli on 27.4.1979. Sh. Kirpa Ram, during his life time on 20.3.1979 executed a will in favour of the plaintiffs and defendant No.1. Jaswant Singh and Dhyan Singh and on the basis of the said will Kirpa Ram bequeathed his lands and house situated in village Lakhroonbelow the 'Sarak se Nichli' i.e. below the road of the plaintiffs whereas defendant No.1 was given land and houses above the road i.e. sarak se upparli. The other sons of Kirpa Ram, namely Jaswant Singh and Dhyan Singh were given land in village Hatli Patialian. The road dividing the property of the parties passes through khasra No. 272 and suit land is located, thus below the road. The defendant No.1 being an influential person, behind the back of the plaintiffs got attested mutation No. 436 dated 24.10.1979 wrongly in his favour whereas the land below the road has been bequeathed to the plaintiffs. Mutation No. 436 is wrong illegal and void. Emboldened by the wrong entries the defendant No.1 sold land measuring 3 kanal 6 marlas being half share out of the land measuring 6 kanal 12 marlas comprised in khasra No. 307 to defendants No. 2 to 4 vide sale deed of 21.1.1987.