BRAHAM DUTT Vs. KHILO DEVI

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dtd. 22/2/2005, passed by the learned District Judge, Hamirpur, (learned First Appellate Court), vide which the judgment and decree dtd. 31/12/2002, passed by learned Sub Judge, 1st Class (I), Hamirpur, H.P., (learned Trial Court) was allowed and the suit filed by the respondent (plaintiff before the learned Trial Court) was decreed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for declaration that she is co-owner-in-possession of the land comprised in Khata No. 122, Khatauni No. 133, Khasra No. 1650/479, measuring 04 kanal 11 marla, situated in Tika Patta, Tappa Mehlta, Tehsil Bhoranj, District Hamirpur, H.P. to the extent of 78/182 shares (hereinafter referred to as the suit land) and the judgment and decree dtd. 1/9/1997, passed in Civil Suit No. 303 of 1997, titled Braham Dutt Vs. Salig Ram is null, void, collusive, and not binding upon the plaintiff. A consequential relief of permanent prohibitory injunction for restraining defendant no. 1 from interfering with the suit land, changing its nature was also sought. A relief of possession was also prayed in case the defendants succeeded in changing the nature or dispossessing the plaintiff from the suit land. It was pleaded that Labha Ram, the deceased husband of the plaintiff, was the owner-in-possession of the suit land to the extent of 78/182 shares. The suit land was mutated in favour of the plaintiff and Smt. Sunehru, the second wife of Labha Ram, in equal shares after his death. Sunehru also died on 13/8/1993 and the plaintiff succeeded to her estate. Defendant No.2 started claiming the share of Sunehru based on certain fake documents. The plaintiff filed a Civil Suit No. 118/95, titled Khilo Devi Vs. Salig Ram in the Court of learned Sub Judge-I. Defendant No.2, in connivance with Ramesh Kumar, filed a Civil Suit No. 415/1994 in the Court of learned Sub Judge-I, Hamirpur, which was decided without impleading the plaintiff. The plaintiff challenged the judgment and decree and the suit is pending before learned Sub Judge-II, Hamirpur. Defendant No.2 is claiming ownership based on the judgment and decree passed in Civil Suit No. 415/94 and the mutation No. 944 was sanctioned on the basis of judgment. The plaintiff is a blind widow lady. Defendant No.2 is forcing her to give away her share. He filed another Civil Suit No. 303/1997 in connivance with defendant No.1., which was compromised to the extent of 1 kanal. The defendants are interfering with the suit land based on the judgments. Hence, the suit seeking the relief mentioned above.

(3.) The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi and cause of action, and the plaintiff being estopped to file the present suit by her act and conduct. The contents of the plaint were admitted to the extent that deceased Labha Ram was the owner of the suit land to the extent of 78/182 shares. It was asserted that he had executed a Will in favour of defendant No.2 regarding his property and defendant No.2 became the owner on the basis of the Will. Mutation of the share of Labha Ram was wrongly sanctioned in the name of the plaintiff and defendant No.2 filed a civil suit challenging the mutation. It was also admitted that defendant No.1 has been declared the owner of 1 Kanal land by the Civil Court. This land was given to defendant No.1 by Labha Ram in the year 1983. Defendant No.1 has constructed an Abadi consisting of three rooms, a verandah and a cowshed. He is using the whole land as a courtyard. Hence, it was prayed that the suit be dismissed.