RAJESH KUMAR Vs. RAVINDER KUMAR AND ORS.

JUDGEMENT

(1.) The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction besides for rendition in the alternative of a decree for possession qua the suit khasra number(s), was, hence partly decreed.

(2.) Briefly stated the facts of the case are that the suit was filed by one deceased Duni Chand and is being contested on his behalf by his next friends/heirs. The claim of the plaintiff is that the land comprised in Khata No. 24, Khatauni No. 50, Khasra Nos. 1111, 1112, 1113 and 1114, plot 4, area measuring 0-04-12 hectares, situated at Mohal Mant Khas, Mauza Mant, Teh. Dharamshala, District Kangra is owned and possessed by the plaintiff. The plaintiff has also sought declaration that he is owner in possession and the will dated 24. 11. 19888 allegedly executed in favour of defendant Rajesh by deceased Kirpa Ram, father of the plaintiff is not a genuine Will but is the outcome of fraud, misrepresentation since Kirpa Ram was not in fit state of mind to execute a Will nor it was ever executed by him.

(3.) The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia limitation, estoppel, cause of action, locus standi, maintainability, valuation, non joinder etc. On merits, it has been submitted that the suit land was owned and possessed by Kirpa Ram and the plaintiff to the extent of half share each. The allegations made by the plaintiff are absolutely wrong. After the death of Kirpa Ram, there is a testamentary disposition of his estate by way of Will dated 24. 11. 1988 which was duly registered and as such the defendant has become owner in possession and no rights are left with the plaintiff qua the share of Kirpa Ram. It has also been submitted that deceased Kirpa Ram had conducted two marriages and one of his wife was Achhari, who gave birth to the plaintiff. The second wife was named Smt. Suni Devi, who provided a daughter and son, Daya Parkash and Ranjba Devi. Defendant No. 1 is the son of Daya Parkash one of the sons of deceased Kirpa Ram, i. e. grand son of deceased Kirpa Ram. The information has been withheld by the plaintiff from the court since the defendant was rendering services to deceased Kirpa Ram, who was aged about 80 years at the time of his death. He out of love and affection executed the Will in favour of the defendant. The plaintiff never looked after the deceased Kirpa Ram, during his life time when he was not well. It is stated that Kirpa Ram was never confined to bed nor Will has been executed under mis-representation or fraud and the mutation has rightly been attested The property having devolved upon the defendant by way of Will, the plaintiff has got no cause of action and locus standi to file the suit.