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. 15 -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 instituted suit against the respondents -defendants (hereinafter referred to as the defendants), for declaration in the Court of learned Sub Judge, Ist Class, Arki, Distt. Solan, H.P. According to the plaintiffs, the suit land was 'Bhentdari' in the possession of Sh. Masadi. He has three sons, namely, Sh. Dhani Ram Kanshi Ram and Jiwa Nand alias Jawala. The land was inherited by them in equal shares. Sh. Dhani Ram was the predecessor -in -interest of the plaintiffs and Sh. Kanshi Ram was the predecessor -in -interest of proforma defendant No. 3. Sh. Jiwa Nand had died in the year 1933. Smt. Nardu was his widow. Within one year of the death of Sh. Jiwa Nand, Smt. Nardu married with Sh. Kanshi Ram in accordance with local custom prevalent in the area and became his legally wedded wife from 1934 onwards. She gave birth to proforma defendant No. 3 namely, Sh. Daulat Ram and four daughters. Kanshi Ram died in the year 1970 -71. His estate was inherited by his son, daughters and Smt. Nardu. A family partition took place in between 1940 to 1945, whereby Sh Dhani Ram and Kanshi Ram both got half share each in the suit land. They 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. Sh. Jiwa Nand died issueless. Thus, according to them, mutation No. 3 was illegal, null and void. The subsequent entries on the basis of aforesaid mutation was also wrong, illegal and bad in law. Smt. Nardu died in the year 1991. The unregistered Will was executed in favour of defendants No. 1 & 2 on 15.7.1991 by Smt. Nardu Devi. According to them, 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 Kanshi Ram. According to them, the widow had only limited right of maintenance. There was a complete ouster to the extent of 1/3rd share of Sh. Jiwa Nand because the father of the plaintiffs and proforma defendant were in peaceful, continuous un -interrupted and hostile possession to the knowledge of whole world.

(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.