LOTI Vs. BALAK RAM & ANOTHER

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the impugned judgment and decree dated 28.05.2008 passed by learned District Judge, Kullu in Civil Appeal No.27/07, affirming therein judgment and decree dated 10.7.2007, passed by learned Civil Judge(Junior Division), Manali in Civil Suit No.32/05, whereby suit for declaration having been filed by the appellant-plaintiff came to be dismissed.

(2.) Briefly stated facts, as emerged from the record, are that the plaintiff filed a suit seeking declaration to the effect that she has become owner in possession of land comprised in Khata/Katauni No.631/1045 bearing Khasra No.5224, measuring 5-0-0 bigha, situated in Phati Burua Kothi and Tehsil Manali, District Kullu as per Jamabandi for the year 1988-89 (hereinafter referred to as the 'suit land') on the basis of last and final Will dated 1.3.2002 executed by deceased Khekhi Devi. Plaintiff also prayed by way of aforesaid suit that Mutation No.3158, dated 29.6.2002, which has wrongly been attested and sanctioned in the name of defendants, may also be declared wrong, illegal, null and void, inoperative against the plaintiff and defendants be restrained from causing any sort of interference in peaceful ownership and possession of the plaintiff in the suit land. Plaintiff claimed that Smt.Kheki Devi daughter of Uttam Ram, who was unmarried, was owner in possession of the suit land and was her real sister. Plaintiff also claimed herself to be sole legal heir of Smt.Kheki Devi. As per plaintiff, Smt.Kheki Devi was residing at village Goshal Phati Burua Kothi, Tehsil Manali, District Kullu, at her parental house because she was unmarried uptill her death. The plaintiff alongwith her family members used to render services to Smt.Kheki Devi, who, inturn having pleased with the services rendered by the plaintiff and her family members, executed last Will dated 1.3.2002 bequeathing thereby suit land in favour of plaintiff. Plaintiff-appellant claimed that Smt.Kheki Devi, after executing Will dated 1.3.2002 in her favour, deposited the same with Registrar, Kullu vide document No.1 dated 1.3.2002. Plaintiff further averred that Kheki Devi died on 10.6.2002 at village Goshal and her last rites were performed by her. Plaintiff further claimed that defendant No.1 has sold the entire suit land to defendant No.2 in order to deprive her from the right which accrued to her after execution of Will in her favour by Smt.Kheki Devi and as such sale deed is mere paper entry and is not binding upon her. Plaintiff further claimed that since no possession was ever delivered to defendant No.2, sale deed being a mere paper entry cannot be looked into. Plaintiff further claimed that in terms of Will dated 1.3.2002 executed by deceased Kheki Devi, she has inherited the entire estate of deceased and has become owner in possession of the suit land. Plaintiff further alleged that defendant in the month of June, 2004 alongwith one Chattar Singh of village Goshal came to the plaintiff and asked her to leave the entire suit land because they have become owners of the suit land. Subsequently, on inquiry, it emerged that the defendant, in connivance with revenue officials, has got mutation No.3158 dated 29.6.2002 attested in his favour on the basis of some forged and fictitious Will. Since, both the Patwari Halqua as well as the defendant refused to enter and admit the last and final Will of Kheki Devi, she was compelled to file the instant suit.

(3.) Both the defendants, by way of detailed separate written statements, raised various preliminary objections qua maintainability and competency of the suit, suit being bad for non-joinder of necessary parties, locus standi, plaintiff estopped by her acts and conduct to file the present suit and suit not being properly valued for the purpose of court fee and resisted the aforesaid claim of the plaintiff. Aforesaid defendants specifically stated that the plaintiff has not approached this Court with clean hands and concealed the material facts from the Court. On merits, defendant No.1 specifically stated in his written statement that deceased Kheki Devi was owner in possession of the suit land, however, he pleaded that Smt.Kheki before her marriage with him had acquired the suit land by way of Nautor and thereafter, solemnized marriage with him and she lived with him as his wife uptill her death. He also admitted that deceased Kheki was sister of plaintiff, but, denied that deceased Kheki was unmarried and the plaintiff was only legal heir of deceased Kheki. The aforesaid defendant No.1 specifically pleaded in his written statement that deceased Kheki Devi daughter of Uttam Chand, resident of village Goshal Phati Burua Kothi Manali, District Kullu, is his legally wedded wife as their marriage took place according to the local custom in the year 1977 and deceased Kheki was living with him at his house and he was looking after, maintaining and rendering all kinds of services to his wife during her life time, who in turn having been pleased with the services rendered by the defendant to her, executed her last Will on 8.6.2002 and Mutation No.3158, dated 29.6.2002 was rightly attested and sanctioned in his favour. Defendants further denied the assertion having been made by the plaintiff that Kheki being unmarried was residing at her parental house at village Goshal Phati Burua and plaintiff and her family members had rendered services to her, who, in turn, having been pleased with the services rendered by the plaintiff and her family members, executed Will dated 1.3.2002 in favour of plaintiff. Defendant No.1 also denied that the plaintiff, on the basis of Will dated 1.3.2002, became owner in possession of the suit land and claimed that alleged Will dated 1.3.2002 was managed and procured by the plaintiff by mis-representation and undue influence and on the basis of aforesaid Will dated 1.3.2002 the plaintiff is not entitled to inherit the suit land. Similarly, defendant though admitted that Smt.Kheki Devi died on 10.6.2002 but specifically denied that she died at village Goshal. Defendant No.1, while denying that the plaintiff is in possession of the suit land, has specifically pleaded that he had sold the suit land to defendant No.2 Chhatar Singh for a sale consideration of Rs.3,50,000/- vide sale deed No.329, dated 27.12.2003 and since then defendant No.2 is sole absolute owner of the suit land. Defendant No.2, in his separate written statement, has adopted the defence as taken by defendant No.1 and has also denied the execution of Will dated 1.3.2002 in favour of plaintiff by deceased Kheki. Defendant No.2 also pleaded that deceased Kheki has executed Will dated 8.6.2002 as her last Will in favour of her husband defendant No.1, in her sound disposing state of mind. He also supported the version put forth by defendant No.1 that after death of deceased Kheki Devi, defendant No.1 had performed her last rites and inherited the suit land qua which mutation No.3158 dated 29.6.2002 had been attested and sanctioned rightly. Apart from above, defendant No.2 also claimed himself to be bonafide purchaser of the suit land and claimed that he is owner in possession of the same because he had purchased the same from defendant No.1 for consideration of Rs.3,50,000/- vide sale deed No.379, dated 27.12.2003. In the aforesaid background, defendants sought dismissal of the suit having been filed by the plaintiffs.