TWARKU Vs. SURTI

JUDGEMENT

(1.) In this Regular Second Appeal under Section 100 CPC appellant defendant. Twarku, has assailed decree and judgment dated 10.10.1995 passed by District Judge, Shimla, whereby his appeal was dismissed and decree and judgment dated 30.4.1992 of Sub-Judge 1st Class. Theog, District Shimla, was affirmed. Sub-Judge 1st Class had decreed the suit of respondents-plaintiffs Smt. Surti to the following effects :

(2.) The property in dispute is detailed in schedules 'A' and 'B', annexed to the plaint. Late Dhanu son of Rubhi, resident of Barelti Pargana Shili Nali, Tehsil Theog, District Shimla, was owner in possession of the property in dispute. Hedied on 5.10.1985, mutation of his inheritance was attested in favour of pro forma respondent-defendant Smt. Panchmu Devi by order dated 18-9-1986 passed by Assistant Collector IInd Grade, Theog, without notice to Smt. Surti. In the appeal filed by Smt. Surti as well as Twarku the mutation dated 18.9.1986 was set aside and case was remanded to Assistant Collector IInd Grade. Theog for passing mutation order afresh after hearing the parties. Ultimately, by order dated 31st May, 1988 mutation of inheritance of Dhanu was attested in favour of Smt. Surti holding her entitled to inherit the properly of Dhanu in her capacity as his widow. Smt. Panchmu admitted that she was divorced by Dhanu on 21-1-198, as such, she had no right to inherit his property. The claim of Twarku that he had been in cultivating possession of the land of Dhanu who was residing with him and also that being his agnate he has a right to inherit his property was rejected.

(3.) In the meantime, Twarku, along with three others, claiming themselves as agnates of Dhanu. filed Civil Suit No. 192 / 1 of 1985 (Plaint Ext. DW- 1/ D) against Smt. Panchmu for declaration that they are owners in possession of the land in dispute and she may be restrained from interfering with their possession and in the alternative for decree for possession. It was alleged in the suit that the estate of Dhanu had devolved upon them as he had left no heir of Class- I and Class-II as per the schedule attached to Hindu Succession Act. Smt. Surti was not made party to the suit. Ultimately, by order dated 7-1 1-1986 ( Ext. DW- 1/A ) suit was decreed in terms of the compromise alleged to have been entered into between the parties and Twarku was declared owner in possession of land measuring 13-11 bighas out of the land in dispute and Smt. Panchmu as owner in possession of remaining land in dispute measuring 4- 10 bighas. As per the compromise. Twarku undertook to maintain Smt. Panchmu till her death.