TRIPTA DEVI WIDOW OF JAGDISH Vs. KRISHAN CHAND

JUDGEMENT

(1.) ORDER of limited remand under Section 107 of CPC Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure 1908 by the appellants against the judgment and decree dated 31.3.2003 passed by learned Additional District Judge Solan in Civil Appeal No. 63 -NL/13 of 1996 titled Tripta Devi and others vs. Krishan Chand and others.

(2.) BRIEF facts of the case as pleaded are that Sita Ram and others filed a suit for declaration with consequential relief of injunction pleaded therein that Majlashi predecessorin -interest of parties had four sons namely Kali Dass, Shivia, Mansha Ram and Manu. It is pleaded that Manu had three sons namely Lajjya Ram @ Lajjya, Jhaiyan and Basu. It is pleaded that Mansha Ram had no issue and he was survived by his widow namely Phullman. It is pleaded that Shivia had two sons namely Ganu and Ganeshu. It is further pleaded that Kali Dass and his brothers were Hindu Brahmins and Kali Dass had adopted Basu as his son and Basu transplanted in the family of Kali Dass. It is pleaded that Phullman Devi widow of Mansha Ram was owner of land measuring 26 bighas 16 biswas and she died intestate leaving behind no legal heirs and after her death dispute arose between Lajjya Ram @ Lajjya, Jhaiyan and Basu on one hand and Ganu and Ganeshu sons of Shivia on the other hand. It is pleaded that thereafter Lajjya Ram @ Lajjya and others filed civil suit No. 41 titled Lajjya and others vs. Ganeshu and others in the Court of Civil Judge and civil suit No. 41 was decreed whereby 1/3rd share of estate of Phullman was mutated as per decree of Civil Court. It is pleaded that Basu was adopted by Kali Dass and he had no right title or interest in the estate of natural father Mr. Manu because Basu stood transplanted in the family of Kali Dass. It is pleaded that name of Basu was illegally recorded in the revenue record as legal heir of Manu. It is pleaded that Basu always represented himself to be adopted son of Kali Dass. It is pleaded that only Lajjya Ram @ Lajjya and Jhaiyan were legal heirs of estate of deceased Manu. It is pleaded that in case Lajjya Ram @ Lajjya and Jhaiyan predecessor -in -interest of plaintiffs are not held or proved to be only legal heirs of Manu and if Basu is not held to be adopted son of Kali Dass even then they have acquired the right of adverse possession qua share of Basu openly, continuously and uninterruptedly since 20.9.1979 BK. It is pleaded that consolidation proceedings started in the village and deceased defendant illegally claimed 1/3rd share in suit land on the basis of wrong and illegal revenue entries. It is pleaded that deceased defendant could not claim 1/3rd share in the suit land. It is pleaded that question of title was raised before consolidation officer for not effecting the partition of suit land on the basis of illegal revenue entries in revenue record. It is pleaded that plaintiff also requested the deceased defendant to admit the claim of plaintiffs but deceased defendant refused to admit the claim of plaintiff. Prayer for decree the suit as mentioned in relief clause of plaint sought.

(3.) PER contra written statement filed on behalf of deceased defendant pleaded therein that suit is barred by time and plaintiffs are estopped to file the present suit due to their act conduct and acquiescence. It is pleaded that suit is barred by res -judicata and suit of plaintiffs is not maintainable and plaintiffs have no locus standi and cause of action to file the present suit. It is admitted that Manu had three sons namely Lajjya Ram @ Lajja, Jhaiyan and Basu. It is also admitted that Mansha Ram had no son and he was survived by his widow Phullma and Shivia had two sons namely Ganu and Ganeshu. It is also admitted that Kali Dass and his brothers are Brahmins. It is denied that Kali Dass had adopted Basu as his son. It is pleaded that transplantation of Basu in the family of Kali Dass does not arise. It is pleaded that Manu was father of Basu. It is pleaded that from Basu Swanu was born and from Swanu deceased defendant was born. It is pleaded that deceased defendant has inherited the suit property to the extent of his share in accordance with law. It is pleaded that civil suit No. 196 was decided on dated 7.10.1989 BK filed by predecessors -in -interest of deceased defendant against Puran, Lajjaya Ram, and Sita Ram etc and same was decreed in favour of Swanu and thereafter share of Kali Dass went to Swanu. It is pleaded that Kali Dass also executed gift deed qua his share in the name of predecessorsin -interest of deceased defendant. It is pleaded that Basu was not adopted by Kali Dass at any point of time. It is pleaded that Basu had legally inherited the share of Manu along with Lajjya Ram and Jhaiyan. It is pleaded that suit property was devolved upon Swanu Ram and from Swanu it was devolved upon Jagdish deceased defendant. It is pleaded that after death of Manu his all three sons namely Lajjya Ram, Jhaiyan and Basu have inherited the suit property to the extent of 1/3rd share each and further pleaded that plaintiffs did not acquire the title in suit property by way of right of adverse possession. It is pleaded that plaintiffs could not challenge the entries of 80 years old revenue record and further pleaded that contesting deceased defendant was legally entitled to file partition proceedings before consolidation officer and contesting deceased defendant was also legally entitled to get his share separated from the plaintiffs. Prayer for dismissal of suit sought. Plaintiffs also filed replication and re -asserted the allegations mentioned in plaint. As per the pleadings of parties learned trial Court framed following issues on dated 25.8.1992: -