DURGA DEVI Vs. NIHAL DASS & ANOTHER

JUDGEMENT

(1.) The plaintiff's suit for rendition of a declaratory decree in respect of hers being entitled to be declared as exclusive owner of the suit property, with, consequential relief of permanent prohibitory injunction being rendered qua thereto, was, under concurrent pronouncements recorded thereon by both the learned Courts below, hence, dismissed.

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit claiming therein relief of declaration to the effect that she is owner in possession of land comprised in khata No.1021/2, Khatauni No.1787, khasra No.2321, measuring 1-14-0 bighas as described in copy of jamabandi for the year 1991-92, situated in phati and kothi Naggar, Tehsil and District Kullu, H.P. and as such collusive revenue entries showing defendant No.1 as owner in possession of the suit land are wrong, illegal and not binding upon the plaintiff with consequential relief of injunction restraining the defendant from claiming any right, title or interest over the suit land. It is averred that one Karmu son of Shri Moti resident of village Kutbai (Naggar), husband of plaintiff was owner in possession of the suit land. Shri Karmu died on 24.6.1985. The plaintiff being his widow is the sole heir of deceased Karmu and as such has succeeded to the suit land on the basis of intestate succession, hence, she is owner in possession of the suit land. The defendants on the basis of some forged and fictitious will dated 27.05.1985 set up by him in connivance with the revenue officials, got mutation numbers 4152 and 4153 dated 25.8.1985 of phati Nakthan and Naggar attested and sanctioned in their names. However, the suit land was not included in the aforesaid, mutation and the mutation in respect of the suit land was not attested and sanctioned in the name of the defendant on the basis of the alleged will set up by them. It is further alleged that the plaintiff had filed a civil suit No.186/85 wherein he had claimed herself as owner in possession of the property and estate of deceased Karmu and had also challenged the aforesaid mutations. The aforesaid civil suit was dismissed by the learned Sub Judge 1st Class, Kullu on 24.09.1987. However, in the civil appeal No.306/87-76/88, the said judgment and decree passed by the learned Sub Judge 1st Class, Kullu was set aside by the learned District Judge, Mandi, Kullu and Lahul Spiti vide judgment and decree dated 10.9.1990 and she was declared owner in possession of the suit property in the said civil suit and the will set up by the defendants was rejected and mutations were declared null and void. In Regular second appeal No.483 of 1990, the judgment and decree passed by the learned District Judge, Mandi, Kullu and L& S was affirmed and maintained by the High Court on 20.8.1991. It is further averred that in the month of February 2001, the plaintiff obtained parcha jamabandi of suit land in order to raise crop loan from the bank and on obtaining such parcha jambandi, she was surprised to know that Patwari Halqa without any authority of law incorporated red entries in the remarks column showing therein that mutation No.4192 had been attested and sanctioned in respect of the suit land in the name of defendants and the said wrong revenue entries were carried out in subsequent jamabandies wrongly. The plaintiff made further inquiries and obtained the relevant documents and came to know that at the time when the previous suit was filed by the plaintiff, the suit land was not included in the said suit because no mutation with respect to the suit land was attested in the name of defendants and further that Patwari Halqua had not issued parcha jamabandi of the suit land although the same was demanded by the plaintiff of the entire property left by Karmu. In the said suit the defendants did not raise any objection as the suit land was not included in the same. The plaintiff came to know about the aforesaid wrong and collusive revenue entries in the first week of August, 2001 and asked the defendant to get the entries corrected but without any result and they started causing unlawful interference in the ownership and possession of the plaintiff.

(3.) Defendant No.1 contested the suit and filed written statement, whereas, defendant No.2 has not contested the suit and he was proceeded against ex-parte. Defendant No.1 in his written statement taken preliminary objections, inter alia locus standi, maintainability, limitation, valuation and the suit filed by the plaintiff is barred by the provisions contained in Order 2, Rule 2 and Section 11 of the CPC. On merits, it is admitted that Karmu died on 24.6.1985, but rest of the claim set up by the plaintiff has been termed as wrong and incorrect. It has been pleaded that on the death of Karmu the suit land came in the possession of defendant No.1 on the basis of Will dated 27.3.1985 which was duly executed by Karmu deceased on the basis of which mutations of inheritance were sanctioned. The suit land has been correctly entered in the ownership and possession of defendant No.1. The suit land was not the subject matter of Civil suit No.189/85 and subsequent Civil Appel No.306/87-76/88 and RSA No. 483/90 of which the plaintiff had full knowledge and notice but the plaintiff intentionally omitted to sue in respect of the suit land in the said civil suit. Hence, the matter was directly and substantially in issue in the previous suit, which is directly and substantially in issue in the present suit, hence, the suit is barred under the provisions of Order 2, Rule 2 and Section 11 of the CPC.