SHAKUNTLA DEVI Vs. KAMLA DEVI

JUDGEMENT

(1.) REGULAR Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellants against the judgment and decree passed by learned District Judge, Una dated 23.3.2010 announced in Civil Appeal No. 89 of 2007/08 titled Shakuntla Devi and others vs. Kamla Devi and Civil Appeal No. 8 of 2007 titled Kamla Devi vs. Shakuntla Devi and others.

(2.) BRIEF facts of the case as pleaded are that suit for declaration was filed by deceased Jaswant Rai that suit land was owned by Gurcharan son of Pohlo resident of Mohalla Damdama Una town Tehsil and District Una except the land measuring 226 -37 being 99/1080 share out of Khasra No. 1304. It is pleaded that deceased Gurcharan executed a registered Will dated 29.6.1990 in sound disposing state of mind and bequeathed his entire property in the names of his four sons including one Malkiat Singh who died without leaving any Class -I heir and his share was succeeded by the parties equally. It is pleaded that Gurcharan Singh died on dated 3.5.1991. It is further pleaded that recital in the Will that tenancy right would be inherited by defendant No. 1 is contrary to law. It is further pleaded that tenancy right could not be Willed away. It is further pleaded that mutation Nos. 314 dated 10.1.1992 and 1371 dated 30.4.1994 sanctioned behind deceased plaintiff are null and void and inoperative and have no binding effect upon the right of the deceased plaintiff. It is further pleaded that on the basis of illegal mutation in favour of defendant No. 1, defendant No. 1 threatened deceased plaintiff to take exclusive possession and also threatened to change the nature of suit land. It is also pleaded that time and again defendant No. 1 was requested to admit the claim of deceased plaintiff but defendant No. 1 refused to do so. Relief for declaration sought to the effect that parties are joint owners of suit land on the basis of Will dated 29.6.1990 and declaration also sought that mutation No. 314 dated 10.1.1992 and mutation No. 1371 dated 30.4.1994 are illegal, null and void and are inoperative. Consequential relief of injunction also sought. In the alternative relief for possession of suit land also sought.

(3.) PLAINTIFF filed replication and reiterated his pleadings pleaded in the plaint. As per the pleadings of parties learned trial Court framed following issues on dated 28.2.2003: -