MIRJA RAM, SON OF SHRI NIHALU, RESIDENT OF VILLAGE AND P.O. RAKHOH, TEHSIL SARKAGHAT, DISTRICT MANDI, H.P., THROUGH HIS GENERAL POWER OF ATTORNEY, HIS SON SH. DHARAM CHAND Vs. SECRETARY (FINANCE), H.P. GOVERNMENT, SHIMLA AND ORS.

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 23.07.2011, passed by the learned Additional District Judge, Mandi in Civil Appeal No. 43 of 2009. Material facts necessary for adjudication of this Regular Second Appeal are that the appellant -plaintiff, (hereinafter referred to as "the plaintiff" for the sake of convenience) has filed a suit for declaration and mandatory injunction as consequential relief under Sections 34 and 39 of the Specific Relief Act. According to the plaintiff, his father late Nihalu Ram died in a landslide, leaving being his widow late Janki Devi and three minor children, Roshan Lal, Mirja Ram and Kanta Devi. The then his Highness of Mandi State sanctioned pension in favour of his mother, Smt. Janki Devi. Defendant No. 5, Roshan Lal was authorized by Smt. Janki Devi to collect pension amount on her behalf from the Treasury Office, Mandi. The defendant No. 5 used to receive pension amount up to 1971. Smt. Janki Devi died in the year 1994. Thereafter, the defendant No. 5 fraudulently got himself declared to be the sole legal heir of late Janki Devi, widow of Nihalu and has received the entire arrears of the pension by ignoring the other legal heirs, namely, plaintiff and proforma defendant No. 6, namely, Smt. Kanta Devi. According to the plaintiff, the pension was sanctioned in favour of Smt. Janki Devi and not in favour of defendant No. 5. According to him, he and Smt. Kanta Devi are entitled to get 1/3rd share towards the pension. It is also stated that the authorities were requested time and again to release the pension, but the same was not released. It was also prayed that the defendant may be directed to restore the amount of pension and defendant No. 3 may be restrained not to disburse the pension amount to defendant No. 5 ignoring the share of plaintiff and proforma -defendant No. 6, as a consequential relief.

(2.) DEFENDANTS No. 3 and 4 have filed a separate written statement. According to them, the pension was sanctioned in favour of defendant No. 5 vide pension order No. 58/spl. we.f. 01.05.1949, as a special case, but the same was not granted to the widow of Nihalu, namely, Smt. Janki Devi. However, there is no contemporaneous material on record that the defendant No. 5 was authorized to collect the pension of deceased Janki Devi, widow of Nihalu, but as per record, the pension was in fact granted to defendant No. 5. It is admitted that the pension disbursing officer, Sarkaghat has released the arrear of pension w.e.f. 01.08.1971 to 30.06.1998 amounting to Rs.1,09,737/ - to defendant No. 5 after due approval by the S.R. Deputy Accountant General, H.P. on 27.4.2001.

(3.) PROFORMA defendant No. 6 has also filed a separate written statement and admitted the claim of the plaintiff as a whole.