RAMKI Vs. KATKI AND OTHERS

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned Additional District Judge, Mandi, H.P., camp at Karsog, in Civil Appeal No. 57 of 2005, dated 04.12.2007, vide which learned Appellate Court while dismissing the appeal filed by the present appellant upheld the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.) Karsog, in Civil Suit No. 17 of 2004, dated 20.11.2004, whereby learned trial Court had dismissed the suit filed by the present appellant/plaintiff for declaration and injunction.

(2.) Brief facts necessary for the adjudication of this case are that the appellant-plaintiff (hereinafter referred to as the 'plaintiff') filed a suit for declaration and injunction to the effect that the suit land comprised in Khewat Khatauni No. 143/276, 277, 278, Kita 10, measuring 3-09-16 Bighas, situated in Muhal Sanarali/415, Tehsil Karsog, District Mandi, (HP) (hereinafter referred to as the 'suit land') was recorded in the ownership and possession of the plaintiff, defendant No. 1 and proforma defendants and that one Dassi, widow of Twaru was having half share in the suit land whereas out of the remaining land, 1/4th share belonged to the plaintiff and 1/4th share belonged to the defendant. It was the case of the plaintiff that by playing fraud upon Smt. Dassi, defendant with the connivance of witnesses got a Will executed in her favour i.e. Will No. 179, dated 11.10.1994, whereas Smt. Dassi never intended to execute the alleged Will for bequeathing her entire share in favour of defendant No. 1. It was further the case of the plaintiff that she i.e. plaintiff was also in good terms with Smt. Dassi who was her mother and in fact Will which was got executed by defendant No. 1 in her favour from Smt. Dassi was a result of misrepresentation and the said Will was thus liable to be declared null and void. It was further mentioned in the plaint that in order to disinherit the plaintiff, the defendant pressurized Smt. Dassi to file a suit for declaration to the effect that the plaintiff was not the daughter of Twaru, however, in her statement Smt. Dassi had clearly admitted that plaintiff was daughter of Twaru. In the said suit which was decided on 29.08.1997, it stood decided that plaintiff was in fact the daughter of Twaru. It was further mentioned in the plaint that the cause of action accrued in favour of the plaintiff on 12.10.2004 when defendant filed a suit against Khem Singh and the plaintiff qua the suit land and on inquiry, plaintiff came to know that a Will had been executed by Smt. Dassi in favour of defendant No. 1 and on the basis of said Will, the property in dispute stood mutated in the name of defendant No. 1 on 22.05.1998. According to the plaintiff, she was not aware that any Will was executed by Smt. Dassi in favour of defendant No. 1. The plaintiff prayed for passing a decree to declare the Will No. 179, dated 11.10.1994, allegedly executed by Smt. Dassi in favour of defendant as null and void as the same was executed by playing fraud and misrepresentation and it was further prayed that defendants be restrained through a permanent prohibitory injunction decree from alienating the suit land in any manner.

(3.) The suit so filed by the plaintiff was contested by defendant No. 1 who was the contesting defendant and who by way of her written statement took the stand that the Will in issue was a genuine Will and even the plaintiff had accepted the Will at the time of mutation of the same before the Assistant Collector 2nd Grade, Karsog, when the mutation was attested. According to the defendant, plaintiff had sold her share of the land and she never used to visit the house of her mother Dassi and she had not come to see their mother (Dassi) even at the time of her death. As per defendant, Smt. Dassi was looked after by her and her land was cultivated by her husband till her death. It was further the case of the defendant that after the death of Smt. Dassi, her Kriya-karam and funeral were performed by defendant and her husband. On these bases, the claim put in the plaint by the plaintiff was contested by the defendant.