LALPUR Vs. NANDU

JUDGEMENT

(1.) The present Regular Second Appeal is maintained by the appellant against the judgment and decree dated 13.5.2004, passed by the learned District Judge, Shimla, in Civil Appeal No.34-R/13 of 2003, whereby the learned Appellate Court has affirmed the judgment and decree passed by learned Civil Judge, Court No.II, Rohru, District Shimla, H.P, dated 31.3.2003.

(2.) Briefly stating facts giving rise to the present appeal are that appellant/plaintiff (hereinafter referred to as 'the plaintiff') maintained a suit against the respondent/defendant No.2 and Smt. Ujaru Devi wife of the plaintiff-defendant No.1 (hereinafter referred to as the "defendant") for declaration to the effect that plaintiff has become absolute owner-in-possession of the land comprised in Khata/Khatauni No.110/367, Khasra Nos. 616, 695, 715, 1007 and 1205 kitas 5 measuring 0-50-11 hectares, situated in Chak Ashanda, Tehsil Dodra-Kawar, District Shimla, H.P (hereinafter referred to as the "suit land") by virtue of registered Will dated 20.3.1992. Defendants have no right, title or interest in or over the suit land and also for Permanent Injunction directing the defendant not to interfere in his possession or to create charge over the suit land. It is alleged that the plaintiff is son of late Jani and defendant No.1 is his mother. Defendant No.1 lived separately from late Jani, who had given agricultural land for cultivation and for maintenance to defendant No. 1. It is further alleged that Jani, at the time of execution of the last registered Will, was an old man of 85 years, who was confined to bed due to ailment. Only the plaintiff looked after and maintained Jani by providing him with food and clothes and other necessities of life including medicines. The two agricultural fields were given to defendant No.1 by late Jani, with the condition that so long defendant No.1 is alive, she could cultivate the same and use the usufruct and after her death, it would go to the plaintiff. It is also alleged that the Will was executed by Jani, in a perfect State of mind without any pressure from any quarter. Contents of the Will were read over and explained to Jani by Sub Registrar, Kawar, and Jani appended his thumb impression on it after having understood the contents of the same. Revenue authorities have attested only half share of the suit property in favour of the plaintiff, whereas Jani through the Will transferred the entire suit land in favour of the plaintiff. The defendants have no right, title or interest in the suit land and are openly threatening to dispossess the plaintiff from the suit land.

(3.) Defendants have resisted and contested the suit on the ground that suit is bad for non-joinder of necessary parties, valuation and limitation. It is admitted that plaintiff is the son of late Jani and defendant No.1 is his mother. Defendant No.2 is not a stranger as he is son of the plaintiff's sister. Defendant No.1 is living separately and it is alleged that Jani was an old man and bed ridden due to ailment. It is further alleged that he was looked after and cared for by the plaintiff. Defendant No.1 has only got life time interest in the property. It is further alleged that the Will is a result of fraud, mis-representation, undue influence and is a forged document.