DEEPAK TRIPATI Vs. JAI WANTI AND CONNECTED MATTER

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 10.7.2001 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No.34-CA/13 of 2000.

(2.) Material facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants-plaintiff, namely, Ishwar Dass (hereinafter referred to as "plaintiff" for convenience sake) filed a suit for declaration and injunction. According to the plaintiff, Smt. Nanti and Har Devi widows of late Sh. Gurdia were owners in possession to the extent of half share with Sh. Surat Ram son of Sh. Devi Singh of the land comprised in Khata/Khatauni No. 24/56 to 62 measuring 78-9 bighas situated in village Chanalag, Tehsil Pachhad, District Sirmaur, H.P. Atma Ram, father of the plaintiff, purchased the entire half share of Nanti Devi and Har Devi and as such he became owner in possession of the half share of land comprised in Khata Khatauni No. 24/43 to 58 according to jamabandi for the year 1958-59. Surat Ram, who was owner in possession of half share, i.e. 39-5 bighas, sold his land vide mutation No. 74 on 20.11.1949 in favour of Mata Ram son of Nanta Ram comprised in Khasra No. 271/2 measuring 38-2 bighas and thereafter vide mutation No. 70, he further bequeathed the land in favour of Mattu son of Shankar to the extent of 2-10 bighas. Surat Ram bequeathed the land in favour of Mattu on 30.5.1958 illegally and without any authority, i.e. 1-7 bighas more than his share. Surat Ram died. He was succeeded by Munni and Parwati, both widows of the deceased. Mutation No. 80 was attested on 20.2.1952 by Assistant Collector 2nd Grade, Pachhad in favour of Munni and Parwati illegally. According to the plaintiff, Surat Ram has not left any property. Parwati contracted second marriage and vide mutation No.102 her name was deleted and Munni was illegally shown in papers as one of the co-owners of the suit land. According to the plaintiff, Munni was neither owner nor in possession as Surat Ram had already bequeathed the land more than his share. Munni was not competent to sell any land. She sold khasra No. 69/1 measuring 6-10 bighas in favour of Sher Jung (substituted by his legal representatives in the original suit as defendants No. 1-A to 1-C vide mutation No. 105 dated 30.10.1958. Munni further bequeathed the property in favour of Bhup Singh and Jagat Singh on 30.10.1958 vide mutation No. 111 to the extent of half share whereas she was not competent to alienate the property more than his share. Munni, according to the plaintiff, has not succeeded to any property from her husband Surat Ram and as such the alienation on her behalf is illegal, especially the entry of separate Khata of Bhoop Singh etc. is illegal. Bhup Singh and Jagat Singh bequeathed khasra No. 20 in favour of defendants No. 4 to 6 as per original suit illegally whereas they were not competent to do so. According to the plaintiff, the entries in jamabandi for the year 1991-92 showing the defendants No. 4 to 5 as owners and defendant No.1 as owner in Khasra No. 394/69 and defendants No.2 and 3 showing in possession and ownership of Khasra No. 89/2 and 91 were illegal and void. In these circumstances, the plaintiff has filed the suit.

(3.) Suit was contested by defendants No.1 to 6 by filing written statement, which was amended subsequently. The defendants have denied that Nanti and Har Devi had any share in the suit property. It is specifically stated that Gurdia had no share in the suit land as in family partition the entire suit land was in ownership and possession of Surat Ram son of Devi Singh. According to the defendants, Munni had transferred the land in favour of Jagat Singh and Bhoop Singh earlier but said transfer was effected in the revenue papers later on. They also averred that mutation No.105 and 110 of oral gift made by Munni dated 30.10.1958 in favour of Bhup Singh and Jagat Singh regarding Khata No. 24 plot No. 13 measuring 78-9 bighas to the extent of half share and Khata No. 25 plot No.3 measuring 25-4 bighas to the extent of ¼th share with share in Shamlat was true and correct and the father of plaintiff was aware of said transfer and had acknowledged the title of Munni. According to the defendants, their possession was continuous, open and uninterrupted to the knowledge of the plaintiff. Defendants No. 7 to 9 have also filed separate written statement. According to them, Nanti and Har Devi had no share in the suit property. Surat Ram had sold land comprised in Khasra No. 271/2 measuring 38-2 bighas to Mata Ram son of Nanta Ram and mutation was lawfully attested on 28.11.1949.