DEVAKU Vs. RAMESH CHAND

JUDGEMENT

(1.) The plaintiffs' suit for rendition of a declaratory decree, and, also for rendition of a decree for injunction, was partly decreed by the learned trial Court, whereby, mutation No.16 of 2.12.1982 was held to be wrong and illegal to the extent of it records plaintiffs No.3 and 4 as daughters of Shri Milkhi instead of Shri Meharu, and, plaintiffs along with defendant No.9 were declared to be joint owners in possession to the extent of 17/42 shares in Khata No.42 and 14/42 share in Khata No.62 along with defendants No.2 to 8, who were declared to be owners of 1/42 share in Khata No.42 and 1/42 share in Khata NO.62. Further sale deed of 6.8.1991 executed by defendant No.1 in favour of defendant No.2 was held to be wrong, illegal and not binding on the plaintiffs and defendant No.9 to the extent of it has transferred share in favour of defendants No.2 to 8 in excess of 1/42 share in each Khata. The aggrieved defendants, instituted an appeal therefrom before the learned first Appellate Court and the latter Court proceeded to allow the appeal and also dismissed the plaintiffs' suit in its entirety. The plaintiffs' being aggrieved therefrom, hence, preferred the instant Regular Second Appeal before this Court.

(2.) Briefly stated the facts of the case are that Shri Lachman son of Shri Sidhu was common ancestor of the plaintiffs and defendants No.1 to 9, who died on 24.05.1980. He had two sons Milkhi and Mehru and four daughters (plaintiffs No.5 to 7 and defendant No.9). Shri Milkhi had died, during the life time of his father, Shi Lachman leaving behind his widow Smt. Taro (plaintiff No.2). After the death of Shri Milkhi, his widow Smt. Taro remarried with the brother of her deceased husband, namely one Meharu. The said Meharu was already married to defendant No.1. Out of the wedlock of Smt. Taro with one Meharu, two daughters Pawan and Vidya (plaintiffs No.3 and 4 respectively were born to Smt. Taro Devi from the loins of Shri Meharu. Thereafter, Mehru died on 1.3.1975. He was succeeded by plaintiff No.1 to the extent of ¼th share and by Smt. Taro, plaintiff NO.2 and Smt. Melo, defendant No.1 jointly to the extent of ¼th share and Pawan and Vidya Devi, plaintiff No.3 and 4 succeeded his share to the extent of 2/4 share vide mutation No.100 dated 12.5.1976. Thereafter Shri Lachman died and mutation of his inheritance was sanctioned on 2.12.1982. In this mutation the shares of the parties and parentage of the plaintiffs No.3 and 4 has not been correctly mentioned. In the order of the Revenue Officer, Smt. Tari has been wrongly mentioned as widow of Milkhi. Similarly, Pawana and Vidya Devi have been wrongly mentioned as daughters of Shri Milkhi, whereas, they are daughters of deceased Mehru. This mutation has been incorporated in the jamabandi for the year 1985-86 and accordingly in this jamabandi the share of the parties have been wrongly recorded. On the basis of these wrong revenue entries defendant No.1 sold her entire share in the suit land to defendants No.2 to 8. At the time of shale she was owner of 7/5th share i.e. 1/72 share but she sold 29/504 share which is in excess of the share owned by her in the suit land. Thus, the sale of the excess share made by defendant No.1 in favour of defendants No.2 to 8 is not binding on the plaintiffs. The plaintiffs have further alleged that the plaintiffs No.5 to 6 have sold their 1/7th share in Khata No.42 and now they have 12/504 share in this khata. Similarly, the plaintiff No.1 who is owner of 42/504 share in the suit land has sold 36/504 share and now she is left with 6/504 shares. Thus, all the plaintiffs and defendant No.9 have 137/504 share in Khata No.42 and 209/504 shares in Khata No.62 and defendants No.2 to 8, who have purchased the share of the defendant No.1 are owners of 7/504 shares in both of the khatas and entries In the revenue record showing them as owners of 36/504 shares are wrong, illegal, null and void and not binding on the plaintiffs and defendant No.9.

(3.) Defendants No.1 to 8 contested the suit and filed written statement, wherein, they have taken preliminary objection qua cause of action, misjoinder of parties, estoppel and maintainability. On merits, they have denied if the shares of the parties have been wrongly recorded in the revenue record. They have also denied if the plaintiff No.2 is the widow of Shri Mehru and the plaintiffs No.3 and 4 are his daughters. According to them, no marriage could take place inter se plaintiff No.2 and Shri Mehru, during the life time of his first wife Smt. Melo Devi, defendant No.1. They have further pleaded that the mutation of inheritance of Shri Mehru has been wrongly and illegal sanctioned in favour of plaintiffs No.2 to 4. In the fact the estate of Shri Mehru was to devolve upon his mother, plaintiff No.1 and widow, defendant No.1 in equal shares. However, mutation of inheritance of Shri Lachman has been corrected sanctioned and attested. They have further pleaded that defendant No.1 had every right to sell her share in favour of defendants No.2 to 8, and, as such the sale made by her is legal and valid. The have denied the rest of the averments made by the plaintiffs in their plaint and prayed for dismissal of the suit.