MATHRU(DECEASED) THROUGH HER L RS SAHIL & OTHERS Vs. RANGIA(DECEASED) THROUGH HIS L RS HARDEI & OTHERS

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellants against the judgment and decree dated 24.2.2004, passed by the learned District Judge, Bilaspur, H.P., in Civil Appeal No.63 of 1993, whereby the learned Appellate Court reversed the judgment and decree, dated 30.4.1993, passed by the learned trial Court in Civil Suit No.48/1 of 1989, with the prayer to set aside the impugned judgment and decree, passed by the learned Appellate Court and the suit of the plaintiff.

(2.) Briefly stating the facts giving rise to the present appeal are that the deceased appellant/plaintiff Mathru (hereinafter called as the 'plaintiff'') instituted a civil suit for declaration against respondent No.1, Rangia (deceased) (hereinafter to be referred as the 'defendant') on the allegations that Jiunu son of Kesru had been owner of land described in Khewat No.20, Khatoni No.23, Khasra No.75, 76, measuring 15.7 Bighas, situated in revenue estate Dhaliar, Pargna Rattanpur, Tehsil Sadar, District Bilaspur, H.P. It has been alleged that after the death of Jiunu, the land in question devolved on his wife, namely Dwarku. The plaintiff, Mathru (deceased) was wife of Santu son of Sardaru, whereas Santu was nephew of Jiunu.

(3.) The respondent/Defendant No.1 had resisted the suit land on the ground of maintainability, estoppel, for want of cause of action and locus-standi in preliminary objections. It has also been averred that the appellant/plaintiff No.1 was not the legally wedded wife of Santu. It has been alleged that Santu executed his last 'Will' in favour of Dwarku on the basis of which, mutation was attested in her name. Thereafter, Dwarku executed a 'Will' in favour of appellant No.1 (deceased) and after detailed inquiry, the Assistant Collector 2nd Grade, attested the mutation in his name. The appellant/plaintiff has no right in the suit land and Santu never executed any 'Will' in favour of the appellant/plaintiff nor there was any occasion for him to execute a 'Will' in her favour. In a 'Will', which was executed on 31.5.1975, by Santu, it was mentioned that the appellant Mathru was not residing in his house for the last 14 years and not maintaining him in any way. It has also been alleged that after his death, Dwarku became the owner of the suit land and after her death, the defendant became the owner of the said land on the basis of a 'Will', which was executed in his favour by said Dwarku. Mutation was attested on the basis of 'Will' executed on 04.2.1979. It has been alleged that the suit land was never inherited by Jiunu from Santu. In fact, it was inherited by Dwarku from Santu. It has also been averred that finally the mutation was attested in the name of the defendant by the Assistant Collector 2nd Grade and the order was confirmed in an appeal by the Collector, Sub Division, Sadar, on 30.9.1988, and the same has become final, as it was not challenged in any higher Court. It was also admitted that a house was constructed on the suit land.