THAKUR DASS Vs. JAGDISH

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment dated 31.12.2013 rendered by District Judge (Forest), Shimla in Civil Appeal No. 31 -S/13 of 2012/10.

(2.) "Key facts" necessary for the adjudication of this Regular Second Appeal are that appellants -plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit for declaration and permanent prohibitory injunction against the respondents -defendants (hereinafter referred to as the "defendants" for convenience sake). According to the plaintiffs, land comprised in Khata Khatauni Nos. 40/74, 41/75, 42/76, 43/77, 60/100, 36/51, 37/54, 55, 56, 58, 38/59, 39/60, 61, 62, 64, 65 and 67, Khasra Nos. 2, 711, 138, 136, 7, 19, 29 and 53 at one given time was owned by Sh. Janki Ram. Plaintiffs have reproduced pedigree table in the plaint. According to the plaintiffs, land was inherited from time to time by the legal heirs. Sh. Khushi Ram died in the year 1970. His share was mutated in the name of his widow late Smt. Janki Devi alongwith defendant No. 3 Parwati vide mutation No. 157 dated 10.11.1970. Defendant No. 3 has wrongly been shown to have succeeded to the share of late Sh. Khushi Ram. Entire 1/3rd share of late Sh. Khushi Ram was to be inherited by late Smt. Janki Devi. Sh. Khushi Ram has died issueless. Defendant No. 3 is daughter of late Sh. Dutt. Revenue entries showing defendant No. 3 to be owner of 1/2 share of the estate of Khushi Ram are wrong, illegal and void. Smt. Janki Devi died on 23.9.2004 at village Kanhenchi. Smt. Janki Devi, during her life time, has executed a gift deed on 27.12.1990 in favour of the plaintiffs in respect of her share. The mutation to this effect was attested in their favour vide mutation No. 255 on 25.2.1991. Smt. Janki Devi executed a registered will in favour of plaintiffs on 25.6.1993 whereby she has bequeathed all her movable and immovable property in favour of the plaintiffs situated at Mauza Kanhenchi, Pargana Kalhanj, Tehsil and District Shimla. Smt. Janki Devi at the time of her death was owner in possession of the land, which was wrongly shown in the name of defendant No. 3. She was also owner in possession of 1/2 share left behind by Smt. Sanehru widow of Ram Saran. Smt. Sanehru died on 5.12.1985 at village Seri. After the death of Smt. Sanehru, her share was inherited by Smt. Janki Devi to the extent of 1/2 share and the defendants to the extent of 1/2 share, whereas the mutation of inheritance of late Smt. Sanehru, which was attested in the year 1996 wrongly showed the defendants to be only persons entitled to inherit the share of late Smt. Sanehru. At the time of death of late Smt. Sanehru, Smt. Janki was alive. Plaintiffs under the 'will' of late Smt. Janki have become owners in possession of 1/2 share of late Smt. Sanehru and also the share of defendant No. 3 wrongly shown to have been inherited after the death of late Sh. Khushi Ram. In the revenue entries, plaintiffs have been shown to be the co -owners of the property to the extent of the share of late Smt. Janki Devi, which was gifted by her to them. After the death of late Smt. Janki Devi, i.e. 23.9.1994, plaintiffs also inherited from late Smt. Sanehru and 1/2 share of her husband late Sh. Khushi Ram wrongly shown in the name of defendant No. 3. Defendants are heirs of late Sh. Dutt. They have inherited the share of late Sh. Dutt and 1/2 share of late Smt. Sanehru. During the life time of Smt. Janki Devi, plaintiffs have been put in possession of the share of Janki Devi. Defendants have recently started threatening the plaintiffs to dispossess them from the land on the pretext that the plaintiffs are entitled only to the share of land gifted to them by late Smt. Janki Devi.

(3.) DEFENDANT No. 3 also filed separate written statement. According to her, plaintiffs have rightly admitted the share of Sh. Khushi Ram in the suit land. According to her, share of Sh. Khushi Ram has rightly been mutated in her name. Smt. Parwati Devi was the natural born daughter of Sh. Dutt son of Sh. Dila Ram son of Janki Ram. She was adopted when she was 2 1/2 years of age by her real uncle Sh. Khushi Ram and his wife Smt. Janki Devi. She was given in adoption by her natural parents Sh. Dutt and his wife Smt. Puranu to Sh. Khushi Ram and his wife Smt. Janki Devi on the day of Shivratri on 18.2.1966. Divorce took place between her and her first husband in the year 1980 -81. She performed second marriage with Sh. Devi Dutt Sharma. The execution of 'will' dated 25.6.1993 is denied. She is legal heir of Smt. Sanehru by virtue of adoption by Sh. Khushi Ram. The revenue entries are correct. Presumption of truth is attached to these entries. The succession of late Sh. Khushi Ram opened in the year 1970.