CHIMANU Vs. CHAMARU AND ANOTHER

JUDGEMENT

(1.) Instant Regular Second Appeal under Section 100 of the Code of Civil Procedure is directed against judgment and decree dated 28.2.2007 passed by the learned Additional District Judge, Fast Track Court, Chamba (HP) in Civil Appeal no. 22/06, affirming judgment and decree dated 30.6.2006 passed by the learned Civil Judge (Senior Division) , Chamba, HP, in Civil Suit No. 177/02, whereby suit for declaration and permanent prohibitory injunction having been filed by the appellant-plaintiff (hereinafter, 'plaintiff') came to be dismissed.

(2.) Necessary facts, as emerge from the record are that the plaintiff filed a suit for declaration to the effect that land comprised in Khata/ Khatauni No. 25/36, Khasra Nos. Kitta 20 measuring 08-13-00 Bigha situate in Mauza Moura, Pargana Jund, Tehsil Salooni, District Chamba and land comprised in Khata Khatauni No. 8/8, Khasra Nos. Kita 17, measuring 11-16-00 Bigha situate in Mauza Chatraid, Up Tehsil Bhalei, Pargana Jund, District Chamba, Himachal Pradesh (hereinafter, 'suit land') was owned and possessed by Santa, who died intestate without executing any Will in respect of suit land. In the aforesaid suit, plaintiff averred that deceased Santa was father of the plaintiff and defendants No.1 and 2 and he was owner-in-possession of suit land till he was alive. It is claimed that deceased Santa never executed any Will because at that time he was aged 60 years and was seriously ill and bed-ridden, who could not hear and understand the things. Plaintiff further averred that had Shri Santa executed Will, Mutation No. 218 dated 28.5.2002 in respect of land comprised in Mauza Chatraid, Pargana Jund, would not have been attested in favour of the parties in equal shares as per Hindu Succession Act. Plaintiff further claimed that he alongwith defendants is in peaceful possession of the land as owner. Plaintiff claimed before the learned trial Court that defendant No.1 on the basis of a false and forged Will, dated 8.4.1993 (Exhibit DW-3/A) is trying to dispossess him from the suit property with a view to grab valuable portion of the suit property without any right or authority. Since defendants failed to admit the claim of the plaintiff, he was compelled to file the suit at hand.

(3.) Defendants filed a joint written statement controverting therein the averments contained in the plaint. Defendants though admitted that the suit land originally belonged to Santa, who breathed his last on 10.2002, but specifically denied that Santa died intestate. Defendants further stated before the learned trial Court that aforesaid Will was executed by deceased owner in the names of plaintiff and defendant No.1. He further stated that neither Santa was suffering from any ailment nor he was bed-ridden, rather, he was hale and hearty at the time of execution of Will (Exhibit DW-3/A) . Defendants further denied that suit property is under occupation of the plaintiff as claimed. By way of replication, plaintiff, while reiterating the averments contained in the plaint, refuted the averments contained in the written statement.