SEHJU RAM Vs. SHRI PYARE RAM AND OTHERS

JUDGEMENT

(1.) By way of this appeal, the appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Mandi, H.P., in Civil Appeal No. 93/2004, 120/05, dated 30.08.2008, vide which learned Appellate Court while dismissing the appeal so filed by the present appellant upheld the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.) Chachiot at Gohar, in Civil Suit No. 354 of 2001, dated 21.09.2004, whereby learned trial Court had dismissed the suit filed by the present appellant/plaintiff for declaration and injunction against the respondents.

(2.) Brief facts necessary for the adjudication of this case are that the appellant/plaintiff (hereinafter referred to as the 'plaintiff') filed a suit praying for a decree for declaration and injunction against the defendants inter alia on the grounds that land comprised in Khewat No. 25, Khatauni No. 39, Khasra No. 371/347, measuring 1-5-17 bighas, situated in Mohal Barkawali No. H.B. 484, Tehsil Thunag, District Mandi i.e. suit land, was previously owned and possessed by late Shri Sangni, who was succeeded by Manglu and after the death of Manglu, the suit land devolved upon Dharu, the predecessor in interest of plaintiff, defendants No. 1 and 2 and proforma defendant No. 3 and was joint Hindu Family ancestral property in the hands of Dharu and Dharu was merely a custodian of the same and had no right to alienate the same. Dharu died on 22.09.2001 and after his death, parties inherited the suit property qua their respective shares. On 25.10.2001, defendants No. 1 and 2 had forcibly dispossessed the plaintiff and proforma defendants from joint possession on the basis of a purported Will executed in their favour by Dharu. As per plaintiff, defendants No. 1 and 2 had managed the Will and mutation on the basis thereof. It was further the case of the plaintiff that deceased Dharu had not executed any Will in favour of defendants No. 1 and 2 nor he had intended to execute the same and the Will in issue was a forged and fictitious document and mutation Nos. 778, 479 and 79, dated 23.10.2001, entered on the basis of the said Will were wrong, illegal, null and void and not binding upon the rights of the plaintiff and proforma defendants. It was on these bases that the suit was filed praying for reliefs mentioned therein.

(3.) By way of written statement filed by the contesting defendants, it was denied that the suit land was previously owned and possessed by late Sh. Sangni, from whom it was succeeded by Manglu and thereafter it devolved upon Dharu or was joint Hindu Family ancestral property in the hands of Dharu. As per defendants No. 1 and 2, suit land was self acquired property of Dharu and parties did not constitute joint Hindu Family nor the suit land was joint Hindu Family ancestral land. According to the defendants, deceased Dharu was fully empowered and competent to deal with the suit land. As per the defendants, Dharu had executed the Will in their favour and mutations regarding the inheritance of the same were rightly and validly attested on the basis of the said Will in favour of defendants No. 1 and 2. It was denied that alleged Will was shrouded with suspicious circumstances as alleged. It was also mentioned in the written statement that deceased Dharu was residing with defendants No. 1 and 2 and was being looked after and maintained by them and after his death, they have performed the last rites of Dharu.