PARMA NAND Vs. MATHI AND OTHERS

JUDGEMENT

(1.) This Regular Second Appeal has been instituted against judgment and decree dated 20.9.2004 rendered by learned District Judge, Solan, District Solan, Himachal Pradesh in Civil Appeal No. 43-S/13 of 2004.

(2.) "Key facts" necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) instituted a suit against the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake) for declaration with further relief of permanent prohibitory injunction. Plaintiff filed suit for declaration that Deoli widow of Moti Ram was co-sharer to the extent of 1/6th share in the land entered against Khata No. 6 Khatauni Nos. 8 to 11 measuring 20 Bigha and 18 Biswas, and to the extent of 1/12 share in the land entered against Khata No. 8 Khatauni Nos. 13 to 20 measuring 37 Bigha 13 Biswa as per Jamabandi for the year 1982-83 pertaining to Village Jekhri and to the extent of 40/238 share of land entered in Khata No. 11 Khatauni No. 12 measuring 1 Bigha 7 Biswas in the Jamabandi for the year 1986-87 pertaining to village Dhandho, Pargana Bagi, Tehsil Kandaghat, District Solan, Himachal Pradesh. She made Will in respect of aforesaid three properties in favour of the plaintiff on 4.10.1963 vide Ext. DW-1/A. Revenue entries showing defendant No.1 Smt. Mathi as owner are made illegally and wrongly so also the sale in favour of defendants No. 2 to 4. Late Smt. Deoli and Mathi were widows of Late Moti Ram. On his death, both of them inherited the estate of Moti Ram including his 1/3rd share in Khata No. 6 Khatauni No. 8/11, 1/6th share in the land entered against Khata No. 8 Khatauni Nos. 13 to 20, entered in the Jamabandi for the year 1982-83 pertaining to village Jekhri and 40/238 share in the land comprised in Khata No. 11, Khatauni No. 12 entered in Jamabandi for the year 1986-87 pertaining to village Dhandho, Pargana Bagi, Tehsil Kandaghat, District Solan, Himachal Pradesh. Plaintiff had been visiting her. She made a Will in favour of the plaintiff. Deoli died. He became owner of the suit land including suit property. Mathi did not file any written statement. Written statement was filed by defendants No. 2 to 4 though signed by defendant No. 2 only. Allegations made in the plaint were denied. They were in joint possession of the land to the extent of share sold to them by Smt. Mathi. Issues were framed by the learned Civil Judge (Junior Division). He decreed the suit on 30.4.2004. Defendants namely Ishwar Dutt, Mohan Dutt and Suneel Dutt filed an appeal against the judgment and decree dated 30.4.2004 before learned District Judge, Solan. He allowed the same vide judgment and decree dated 20.9.2004. Hence, this Appeal.

(3.) The Regular Second Appeal was admitted on 27.12.2004 on the following substantial questions of law: