DESH RAJ Vs. SARINDRO DEVI

JUDGEMENT

(1.) The plaintiff is the appellant who filed a suit for declaration to the effect that he was owner in possession of 1/4th share of the land as well as shop entered in Khata No. 33, Khatoni No. 46, Khasra No. 1158/484 measuring 7K-2 M as per jamabandi 1983-84, situated in Tika Jhanikkar, Tappa Ugialta, Tehsil and District Hamirpur, H.P., with a relief of permanent injunction restraining the defendant from alienating the land.

(2.) It was averred that previously Thakur Dass s/o Jawahar father of the parties was owner in possession of the suit property, who died on 26.2.1989. According to the plaintiff, the defendant No. 1 was a cunning person, who got some "Will" dated 1.10.1987 executed fraudulently and illegally from Thakur Dass, who always wanted to give every inch of the suit property to the plaintiff and defendant No. 1 in equal shares. In was alleged that in the year 1986 Thakur Dass had suffered an acute attack of paralysis because of which his mental faculty and body was completely effected and for which the plaintiff got him treated at C.M.C. Ludhiana, but there was no visible improvement. It was alleged that plaintiff had always been looking after his father, who most of times resided with him and wanted to give the shop in question to him. Therefore, the "Will" got executed in favour of defendant No. 1 was null and void and not binding on the plaintiff. It was further alleged that on the basis of "Will", the defendant had started claiming the shop in question to be his and hence the suit.

(3.) The suit was contested by the defendant- respondent No. 1 by raising preliminary objections of maintainability, form, estoppel, limitation, valuation etc. On merits, it was claimed that at the time of execution of "Will" Thakur Dass was possessing a sound disposing mind and the same was executed as per his wishes. The suit was further resisted on the ground that whole of the property of Thakur Dass had not been included in the suit. It was specifically alleged that Thakur Dass never wanted to give the shop in question to the plaintiff.