MELA RAM Vs. SATYA PAL AND OTHERS

JUDGEMENT

(1.) This appeal stands directed against the impugned judgement of the learned District Judge, Kinnaur Civil Division at Rampur Bushahr, Himachal Pradesh, whereby it partly decreed the suit of the plaintiff whereby he stood declared owner in possession of Khasra No. 738 and the superstructure thereon Khasra Number whereof is situated in Mauza Syarla Barshol (Teklech), Tehsil Rampur Bushahr, District Shimla. However, the remaining prayer of the plaintiff qua deceased testator not executing a valid and operative Will stood rejected.

(2.) The facts necessary for rendering a decision on the instant appeal are that the Mela Ram plaintiff has filed a suit for declaration and injunction. It was averred that the predecessor in interest of the parties of the suit late Shri Chiranji Lal died on 6.1.1989 and is survived by the plaintiff and defendants No. 1 to 5 who are all his sons. It was averred that the plaintiff settled at Taklech Chak, Syarla Barshol, District Shimla, Pargana and Tehsil Rampur Bushahr and purchased land there and started raising construction thereon without any assistance or help of any sort either from late Sh. Chiranji Lal or from any of the defendants. It was pleaded that the plaintiff alone is absolute owner of the suit land and had been enjoying the fruits i.e. income of the orchard at Theda Chikri as well as rent of the built up property. It has been further averred that some will was got executed by defendants No. 1 to 5 taking undue advantage of the revenue entries. It is further pleaded that on the basis of the alleged will mutation in respect of the properties mentioned in the suit cannot cast any shadow on the title of the plaintiff, hence, this suit.

(3.) The defendant filed written statement and thereby resisted and contested the suit of the plaintiff by taking preliminary objection qua maintainability, limitation, estoppel and suppression of material facts. On merits, the defendant termed the averments made in the plaint as wrong and incorrect and averred that the plaintiff is not in possession of the property in dispute. As the plaintiff was not having any source of income thus he started working with his father at village Taklech where he was helping the joint business with his father and living jointly with his father and brothers. It is further averred that no construction was raised by the plaintiff.