KRISHAN CHAND Vs. ANIL KUMAR

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree of the learned District Judge, Solan, H.P. dated 19.9.2002, passed in Civil Appeal No. 14 -S/13 of 2002.

(2.) KEY facts, necessary for the adjudication of this regular second appeal are that the appellants -plaintiffs (hereinafter referred to as the plaintiffs) have filed suit for declaration. According to the plaint, one Sh. Masadi was common ancestor of the parties. He has three sons, namely, Sh. Dhani Ram Kanshi Ram and Jiwa Nand alias Jawala. The plaintiffs and proforma defendant No. 7 as per the array of parties given in the original suit are the successors in interest of Sh. Dhani Ram and respondents -defendants No. 1 to 6 (hereinafter referred to as the defendants) are the successors -in -interest of Sh. Kanshi Ram. Sh. Dhani Ram died in the year 1995. Sh. Kanshi Ram died in the year 1970 -71. Sh. Jiwa Nand had died in the year 1933. Sh. Masadi was having land in three villages which was coparcenary property. He died in the year 1932 and after his death, all his sons inherited the coparcenary property in equal shares. Sh. Jiwa Nand died issueless in the year 1933 and he was survived by his minor widow namely Smt. Nardu. Smt. Nardu remarried with Sh. Kanshi Ram, the predecessor of defendants No. 1 to 6 in accordance with local custom prevalent in the area. She gave birth to defendant No. 3 namely, Sh. Daulat Ram and three daughters i.e. defendants No. 4 to 6 as per the details of parties in the original suit, namely, Smt. Nanki, Krishani and Rameshwari. A family partition took place in between 1940 to 1945. Sh Dhani Ram and Kanshi Ram got both half share each in the suit land and came in possession of their respective 1/2 share exclusively to the exclusion and complete ouster of 1/3rd share of their third brother Sh. Jiwa Nand. Thus, according to them, mutation No. 142 of village Pansoda, mutation No. 81 of Village Mashlog and mutation No. 49 of village Thathali attested about 62 years back whereby the interest of late Sh. Jiwa Nand qua 1/3rd share in the suit land devolved upon his widow Smt. Nardu was illegal and void. The subsequent entries on the basis of aforesaid mutations qua 1/3rd share in the name of Smt. Nardu till the year 1991 were also wrong and illegal and not binding upon the plaintiffs. The inheritance qua 1/3rd share of Sh. Jiwa Nand which opened in the year 1933, the rights of Nardu got extinguished on her remarriage with the father of defendant No. 3 since widows at that time were having only limited interests i.e. a right of maintenance in the property of their deceased husbands and that right extinguished on their remarriage. According to the plaintiffs, they and defendants No. 3 to 6 remained in possession of 1/2 share each jointly on the spot. The possession of the plaintiffs and defendants No. 3 to 6 qua 1/3rd share of Sh. Jwala in the suit land is un -interrupted, continue, hostile and to the knowledge of the whole world which has been perfected into title by way of adverse possession. This fact was in the knowledge of defendants because on 1.6.1979 the defendant No. 3 in collusion with her mother had applied to the revenue authorities for partition of the suit land in which the father of the plaintiffs had denied the 1/3rd share of the deceased mother of defendant No. 3. She failed to determine her title qua 1/3rd share of her husband within 12 years and as such she was completely ousted. Smt. Nardu died in the year 1991 and her inheritance has gone in favour of defendants No. 1 & 2 as per the array of parties given in the original suit on the basis of an oral and unregistered will dated 15.7.1991. The Will was outcome of fraud, manipulation and fabrication. It is in these circumstances, the plaintiffs have filed suit for declaration to the effect that the plaintiffs alongwith proforma defendant No. 7 as per the details given in the array of parties in the original suit and defendants No. 3 to 6 were joint owners in possession of 1/2 share each in the suit land and all the revenue entries qua 1/3rd share of Sh. Jiwa Nand in favour of deceased Smt. Nardu since 1933 till her death and the Will dated 15.7.1991 executed by her in favour of defendants No. 1 & 2 and the mutations No. 117, 243 and 385 dated 24.2.1992 were wrong, illegal and null and void. In the alternative, the plaintiffs alongwith proforma defendant No. 7 and defendants No. 3 to 6 have perfected their title on the date of complete ouster qua 1/3rd share of Sh. Jiwa Nand which is presently recorded in the name of Smt. Nardu.

(3.) THE issues were framed by the learned Sub Judge, Ist Class, Arki. He dismissed the suit on 30.1.2002. The appellants -plaintiffs, feeling aggrieved by the judgment and decree dated 30.1.2002, filed an appeal before the learned District Judge, Solan. The learned District Judge, Solan also dismissed the same on 19.9.2002. Hence, this regular second appeal.