MADHO RAM Vs. DURGA RAM & OTHERS

JUDGEMENT

(1.) The plaintiff instituted a suit against the defendants for declaration and for permanent prohibitory injunction. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom by the aggrieved defendants before the learned First Appellate Court, the latter Court allowed the appeal of the defendants whereupon it dismissed the suit of the plaintiff. The plaintiff/appellant standing aggrieved by the impugned rendition recorded by the learned First Appellate Court, hence, concerts to assail it, by preferring an appeal therefrom before this Court.

(2.) Briefly stated the facts of the case are that one Sarwan alias Sarwan Dutt was joint owner in possession of land comprising in khata/khatoni No. 8/8, 10/10, 11/11, 12/12 to 15, situated in village Khaswin. Said Sarwan had executed a Will dated 16.01.1981, whereby, he had bequeathed ½ share of his property in favour of Madho Ram and Durga Dutt and remaining ½ share in favour of his widow Smt. Ajudhya Devi till her life time. On her death, her ½ share was to be reverted back to Madho Ram and Durga Dutt in equal share. It is further alleged that Smt. Ajudhya Devi was not absolute owner of the suit land and as such she was not competent to alienate the same by executing a Will. Said Smt. Ajudhya Devi had not executed any Will in favour of defendants Nos.2 and 3, out of defendants No.1 to 3, in connivance with Assistant Collector 1st Grade, Ghumarwin, got a Will of Smt. Ajudhya Devi registered and thereafter mutation No.208 of 17.03.1994 was illegally attested qua the suit land in favour of defendants No.2 and 3. In the month of May, 1994, the defendant had threatened to dispossess the plaintiff from the suit land. Thus, the plaintiff had sought a decree for possession that the plaintiff and defendant No.1 be declared owners in possession of the suit land and that the Will of Smt. Ajudhya Devi and mutation No.208 of 17.03.1994, in favour of defendants Nos. 2 and 3 be declared wrong and illegal with a consequential relief of permanent injunction for restraining the defendants from interfering exceeding share of defendant No.1 in the suit land and claiming share of Smt. Ajudhya Devi and in the alternative a decree for possession.

(3.) The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections qua maintainability of the suit, cause of action, locus standi, estoppel, valuation of the suit and limitation . On merits, they had averred that Smt. Ajudhya Devi being widow of Sarwan was already having a pre-existing right to maintenance in the suit land and she was given the suit land by Sarwan in lieu of her maintenance and thus Smt. Ajudhya Devi was absolute owner of the suit land. It was further pleaded that Smt. Ajudhya Devi was competent to alienate the suit land in faovur of defendants Nos. 2 and 3. Said Smt. Ajudhya Devi had executed a valid Will of 27.05.1992 in favour of defendants No. 2 and 3. On the basis of said Will of 27.05.1992, the defendants No. 2 and 3 had inherited the suit land and consequently mutation dated 17.03.1994 was legally attested in the names of defendants Nos. 2 and 3. In nutshell the defendants refuted the case of the plaintiff and they prayed for dismissal of the suit with costs.