HUKMI DEVI & ANOTHER Vs. MADAN

JUDGEMENT

(1.) The present regular second appeal has been maintained by the appellants, who are legal representatives of Shri Dhani Ram (since dead), the original plaintiff, (hereinafter referred to as "the plaintiffs"), laying challenge to the judgment and decree, dated 10.05.2007, passed by the learned Additional District Judge, Shimla, District Shimla, H.P., in Civil Appeal No. 1-S/13 of 2004, whereby the appeal filed by the plaintiffs against the judgment and decree, dated 21.04.2004, passed by the learned Civil Judge (Junior Division), Court No. 1, Shimla, H.P., in Civil Suit No. 107/1 of 2002, dismissing the suit of the original plaintiff, Shri Dhani Ram, was partly allowed.

(2.) The key facts of the case can tersely be summarized as under:

(3.) The defendant, by way of filing written statement, contested and resisted the suit of the plaintiff. He raised preliminary objections, viz., cause of action, valuation, non-joinder of necessary parties, maintainability, etc. On merits, the defendant admitted that Shri Shibu was father of the original plaintiff and Shri Burfia was real brother of Shri Shibu having lands in two revenue estates. He has further admitted that Shri Burfia had died. The defendant contended that Shri Shibu had settled in Village Bharara and Shri Burfia got settled in Village Jaishi and he himself was looking after his property there. As per the defendant, Village Jaishi is about four kilo meters from Village Bharara and the original plaintiff or his father did not visit village Jaishi. He has further averred that the plaintiff was suffering from paralysis for six-seven years and he was bed ridden and he was taken care by others. The plaintiff did not have any male issue, therefore, Shri Burfia executed a due and valid Will, dated 19.10.2000, in favour of the defendant, just to look after the plaintiff properly and after his death his final rites could be performed. As per the defendant, Shri Burfia has given possession of land in Village Jaishi prior to his death. He has succeeded the estate of Shri Burfia, as per the Will. The defendant refuted and denied other allegations of the original plaintiff and prayed for dismissal of the suit.