REVTI DEVI Vs. HARI SINGH & ANR

JUDGEMENT

(1.) This appeal has been filed by the appellant/ plaintiff against the judgment and decree passed by the Court of learned Presiding Officer Fast Track Court, Mandi, in Civil Appeal Nos. 58/2004, 135/2005 dated 31.03.2008, vide which, learned Appellate Court dismissed the appeal filed by the present appellant against the judgment and decree passed by the Court of learned Civil Judge (Jr. Division), Sundernagar, in Old Civil Suit No. 144/1990, New Civil Suit No. 99/2002, dated 15.06.2004 and allowed the cross objections filed on behalf of the respondents/defendants under Order 41 Rule 22 C.P.C. against findings returned by learned trial Court on Issues No. 1(a) and 2.

(2.) This appeal was admitted on 02.06.2008 on the following substantial questions of law:-

(3.) Brief facts necessary for the adjudication of the present case are that the appellant/plaintiff (hereinafter referred to as the 'plaintiff') filed a suit for declaration to the effect that land comprised under khewat No. 43, Khatauni No. 61, Khasra No. 1898/1454 old and present Khasra No. 1151 measuring 3-1-15 bighas, situated at village Bhour, Tehsil Sundernagar, District Mandi, HP (hereinafter referred to as 'suit land') was owned and possessed by the plaintiff as per Will dated 04.11.1986 which was the last Will of deceased Ganga Ram made by him in her favour and entries qua the same in favour of defendant No. 1 as owner thereof and in favour of defendant No. 2 as non occupancy tenant thereupon were wrong, illegal, null and void. It was further prayed that as the defendants had taken over the forcible possession over the suit land on the basis of said wrong and illegal revenue entries, possession of suit land be also delivered to the plaintiff as a consequential relief. According to the plaintiff, suit land was owned and possessed by one Shri Ganga Ram who during his lifetime was looked after and maintained by the plaintiff and out of love and affection and in lieu of services rendered to him by the plaintiff, Ganga Ram bequeathed the suit land in her favour by way of a registered Will dated 14.05.1985, which Will was later on revived and confirmed by him vide his last and final Will dated 04.11.1986, which Will was also executed by Ganga Ram in her favour. As per the plaintiff, Ganga Ram died on 07.11.1986 and after his death, she inherited and succeeded to the suit land on the basis of said Will and was in possession of the suit land in her capacity as owner. Further as per the plaintiff, Ganga Ram had not executed any other Will except the abovementioned two Wills in her favour, however, defendant No. 1 managed to obtain one Will in his favour from the deceased which was result of misrepresentation, deception, undue influence and fraud etc.. As per the plaintiff, the forged Will had no weight in the eyes of law. It was her case that in November, 1988, when she had sown wheat crop in the suit land, defendants in connivance with each other re-ploughed the suit land forcibly and changed the crop sown by her and instead had sown their own wheat seeds. As per plaintiff, she requested them not to do so and not to take law in their hands, however, defendant No. 1 disclosed to her that he was recorded as owner of the suit land while defendant No. 2 was non-occupancy tenant in possession under defendant No. 1. It was further the case put up by the plaintiff that thereafter she approached the Patwari Halqa and obtained the copies of revenue record from him and after getting them 'visualized' from her counsel, the disclosure of defendant came to light. It was further stated by the plaintiff that mutation, if any, concerning the suit land in favour of defendant No. 1 and on the basis of same, subsequent entries in revenue record were wrong, illegal, null and void and inducting defendant No. 2 as non-occupancy tenant over the suit land was also wrong and illegal and without any authority. It was on these bases, the suit was filed by the plaintiff seeking the relief as mentioned above.