SAVITRI DEVI Vs. SURENDER PAL & ANOTHER

JUDGEMENT

(1.) The instant Regular Second Appeal is directed against the impugned judgment and decree rendered by the learned Presiding Officer/Additional District Judge-1, Fast Track Court, Hamirpur, H.P in Civil Appeal No. 43 of 1999/148 of 2004 , whereby the judgment and decree rendered by the learned Sub Judge, Hamirpur, H.P. in Civil Suit No. 237 of 1992 of 25.5.1999 stood affirmed.

(2.) The brief facts of the case are that the suit land comprising of Khata No. 53 Khatoni No. 53 Khasra Nos. 8, 103, 183, 185, 186, 11,13,14 Kita 8 measuring 17 Kanals 15 marlas, situated in Tika BairiBrahmna, Tappa Mewa Tehsil Bhoranj, District Hamirpur, H.P. Khata No. 308 , Khatoni No. 381 Khasra No. 111, 135 and 136 kita 3, measuring 9 Kanalas 1 marla, situated in Tika Gharsah Tappa Mewa, Tehsil Bhoranj, District Hamirpur, H.P and Khata No. 115, Khatoni No. 122, Khasra No. 397 measuring 1 kanal 5 marlas, situated in tika Bhukker, Tappa Mewa, Tehsil Bhoranj, District Hamirpur, H.P. was owned and possessed by the deceased Sihnu who was grandfather of the respondents herein (for short "the plaintiffs"). It is averred by the plaintiffs that they and their father Ram Singh were looking after the deceased and because of his love and affection he had executed a registered will in favour of the plaintiffs on 4.7.1989 qua the suit land owned by him. They have further averred that the defendant had left the house of their father in the year 1978 and had never turned up to join matrimonial home and on the contrary she started residing in her parental home in village Mundkhar. They further averred that the defendant at the time of her residing in their house used to quarrel with the deceased and had been misbehaving with him because of which she was having strained relations with the deceased and because of these reasons the deceased had executed the will in their favour on 4.7.1998. They have further averred that the defendant is also alleging will to have been executed by the deceased in her favour which is altogether false and fictitious and fabricated. They have averred further that the defendant has got the mutations No. 251,1142 and 720 of 18.6.1992 sanctioned in her favour qua the suit property in connivance with the revenue officials and all these mutations are illegal, null and void. They have prayed for declaring them to be owners in possession of the suit property and have also prayed to restrain the defendant from interfering in the suit land and from changing its nature or alienating it in any manner on the basis of wrong mutations.

(3.) The defendant/appellant herein contested the suit and filed written-statement. She in her written-statement has averred that the suit is not maintainable in the present form as the plaintiffs are out of possession of the suit land. She has also averred further that the act and conduct of the plaintiffs are bar to the present suit and that the suit has not been properly valued for the purpose of Court fee and jurisdiction. She has further averred that the plaintiffs are son of Ram Singh from the second wife which marriage is illegal, null and valid and therefore they cannot succeed to estate of the deceased. On merits, she has specially averred that she is residing in the house of the deceased Sihnu who was her father-in-law and that she had been looking after him nicely during his life time and he had executed valid will qua his estate in her favour as well as in favour of the plaintiffs on 22.6.1991 vide which he had bequeathed half of the suit property in her favour. In brief she has denied the case of the plaintiffs as a whole.