KHUSHAL CHAND Vs. SHBOHA LAL AND ANR.

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 22.11.2012 rendered by the Additional District Judge Shimla in Civil Appeal No. 2-S/13 of 2010.

(2.) "Key facts " necessary for the adjudication of this Regular Second Appeal are that the appellant/plaintiff (hereinafter referred to as the "plaintiff " for convenience sake) filed a suit for injunction against the respondents/defendants (hereinafter referred to as the "defendants " for convenience sake). According to the plaintiff, one Devku, daughter of Atma was resident of Village Neen Pargana Karoli, Sub Tehsil Junga, District Shimla, H.P.. She was the exclusive owner of the land comprised in Khata No. 3, Khatauni No. 5, Khasra Kita No. 6, measuring 14-1 Bighas in that revenue village. She was also co-sharer in possession of half share in the land comprised in Khata No. 6, Khatauni No. 9, Khasra Kita 6, measuring 36-1 Bighas. The other half share in the said land belonged to her husband Tek Dass, as per jamabandi for the year 1976-77. She was owner in possession of 32-1 Bighas, situated in revenue village. Tek Dass, husband of Devku, gifted 8 bighas of land in favour of Krishan Chand and thus, he was owner in possession of 10 bighas of land. He died intestate leaving behind Smt. Brikmu, daughter and Smt. Devku and Smt. Panchi, his widows. Therefore, five Bighas of land out of 10 Bighas of Tek Dass devolved upon Smt. Brikmu, his daughter and 5 Bighas jointly on Smt. Devku and Smt. Panchi in equal shares. According to him, on account of inheritance, Devku became owner in possession of 34-11 Bighas of land situated in that village, whereas Smt. Brikmu and Smt. Panchi jointly owned and possessed 7-10 Bighas of land. According to the plaintiff, Smt. Devku executed a will in favour of the plaintiff on 30.6.1980 and bequeathed the land comprised in Khasra No. 92/2, 94/3, 96/7 and 2-18 Bighas of land out of Khasra No. 38 measuring 10 Bighas to the plaintiff, whereas the remaining land was bequeathed in favour of Shiv Ram, defendant No. 2. Devku died on 20.7.1980. After the death of Devku, the plaintiff succeeded to 10 Bighas of land comprised in Khasras No. 92/2, 94/3, 96/7 and 113/38 on the basis of the will dated 30.6.1980 and, thus, he was owner in possession of the aforesaid land. Mutation No. 49 was attested by the Assistant Collector 2nd Grade on 25.8.1980 only to the extent of half share i.e. 5-2 Bighas, instead of attesting the mutation in favour of the plaintiff to the extent of 10-3 Bighas of land, on the basis of the will dated 30.6.1980. The remaining land was shown in the ownership and possession of Shobha Lal, defendant No. 1. He purchased only shares of Smt. Brikmu and Smt. Panchi, which were only to the extent of 7 ½ Bighas, therefore, the vendors could not have delivered the ownership and possession of more land than what they themselves owned and possessed. Defendant No. 1 on the strength of wrong revenue entries tried to interfere in the possession of the plaintiff over the suit land in the first week of Sept. 1998. Thereafter, the plaintiff filed a suit bearing No. 133/1 of 1998 before the learned Sub Judge (2) Shimla against him, and in that suit, defendant No. 1 took a plea by filing written statement on 12.11.1998 that Devku had given just 5-2 Bighas of land to the plaintiff under the will and set up title in the remaining land, on the basis of the sale deed dated 14.7.1983 executed in his favour by Smt. Brikmu and Smt. Panchi. Civil Suit No. 133/1 of 1998 was dismissed in default on 17.1.2002. It is in these circumstances, the plaintiff filed suit for decree of declaration to the effect that he is owner in possession of the suit land measuring 10-3 Bighas and the revenue entries existing in favour of defendant No. 1 are wrong, null and void. He also prayed for a decree of permanent prohibitory injunction and in the alternative, possession of the suit land was prayed for against the defendants.

(3.) The suit was contested by defendant No. 1. On merits, defendant No. 1 averred that Tek Dass and his wife Smt. Devku jointly gifted 8 Bighas of land to Krishan Chand and they continued to be the owners in possession of the remaining land around 28 Bighas in equal shares. After death of Tek Dass, his half share, i.e. 14 Bighas, was devolved upon his legal heirs, Smt. Brikmu to the extent of half share and Smt. Panchi and Smt. Devku jointly to the extent of half share. The plaintiff was given half share in the suit land by Devku under the said will and mutation No. 49 was rightly attested on 25.8.1980. The plaintiff was present at the time of attestation of mutation and he was also a witness to the sale deed executed by Smt. Brikmu and Smt. Panchi in favour of defendant No. 1.