VIMLA DEVI Vs. DEV RAJ

JUDGEMENT

(1.) Through, the concurrently recorded verdicts, both the learned courts below, hence non suited, the plaintiffs. The plaintiffs are aggrieved therefrom, hence, through, the instant appeal constituted before this Court, strive, to, beget hence reversal(s) of the verdicts, as, stand concurrently recorded against them, by, both the learned courts below.

(2.) Briefly stated the facts of the case, of, plaintiffs are that their predecessor Shri Krishan Chand alias Krishan Lal was the owner of 1/3rd share to the extent of 642-86 square meters in the land and house comprised in Khewat No.144, Khatauni Nos. 271 to 276, total measuring 1928.57 square meters, situated in Mohal Dhabon, Nahan city. That out of his share, he alienated an area of 76.26 square meters and at the time of his death, he was entitled to 566.60 square meters of land and houses. Shri Krishan Lal died on 1.7.1996 and at the time of his death he had three sons, one Sh. Sumer Chand (husband of the plaintiff No.1 and father of plaintiff No.2 and 3), Dev Raj and Bhushan as well as three daughters Smt. Sunita, Kiran and Promila besides his wife Smt. Parwati. It has been averred that the defendants and Shri Sumer Chand, i.e. the predecessor- in-interest of the plaintiffs, inherited the estate of Sh. Krishan Lal in equal shares, and on 1.7.1996 at the time of death of Sh. Krishan Lal, Sumer Chand was entitled to an area of 81.0 square meters, out of the inheritance of late Sh. Krishan Lal. That Shri Sumer Chand, the predecessor-in-interest of the plaintiffs died on 5.6.1998 and the plaintiffs are in possession of the houses and lands along with the defendants. That on 15.5.2000, the plaintiffs came to know that instead of their lawful share of 81 square meters, which they have inherited being the estate of Sumer Chand, they are being shown as owners in possession of 63 square meters land only. That the plaintiffs obtained the copy of jamabandi on 17.5.2000 and came to know from the revenue records that the defendant shave manipulated a wrong revenue entry on the basis of some Will executed by Shri Krishan Lal in favour of the defendants, despite, the fact that Shri Krishan Lal never executed any Will in their favour nor he was in such a state of mind to execute the Will. It has been averred that the plaintiff also came to know that the defendant No.7 has purchased a portion out of the suit land, which is illegal and void and does not confer any right upon her. That the plaintiffs called upon the defendants many times to agree to the partition of the holdings and to allow the plaintiffs to possess their rights on 81 square meters of land, however, the defendants have failed to exceed to their requests, and, as such, the plaintiffs have filed the present suit for declaration that they are owners to the extent of 1/7 share along with houses, measuring 81 square meters of the suit land and the revenue entries wherein the share of the plaintiffs have been reduced and shown to be 63 square meters are illegal, null and void and inoperative qua the rights of the plaintiffs and any alienation made by the defendants affecting the rights of the plaintiffs to to their entitlement of 81 square meters of the land and the houses is also null and void and illegal and not binding on the rights of the plaintiffs and they are also entitled to get their rights of partition and also prayed for a decree of partition and possession of the suit land.

(3.) The defendants contested the suit and filed separate written statements. Defendants No.1 to 6 in their written statements, denied that Sh. Sumer Chand, the predecessor-in-interest of the plaintiffs, is entitled to 81 square meters of land. It has been stated that Shri Krishan Lal executed a Will on 9.11.19990 in a sound and disposing mind and also in the presence of the witnesses and got the same registered in the office of Sub Registrar, Nahan, on the same day and on the basis of the Will, the predecessor-in-interest of the plaintiffs Shri Sumer Chand was given 1 1/2 share of plain land i.e. 63 square meters, out of the estate held by him. That the remaining land and property was bequeathed in favour of defendants No.1,2 and 4 in equal shares. That Sh. Sumer Chand was living separate with his family and was not helping his father nor was contributing anything to his father on the other hand, Shri Krishan Lal was happy with the services rendered by the defendants, who were doing everything for him. That Shri Sumer Chand was aware of the said Will and he on 22.11.1990/28.1.1991 sworn an affidavit before the Executive Magistrate, Nhan, wherein, he admitted the authenticity of the Will and accepted the fact that he was given 1 1/2 bsiwas of land through that Will, and, Shri Sumer Chand also undertook to vacate the room of Khasra No.1046 within six months by means of that affidavit. That mutation on the basis of said Will was attested on 30.9.1996 after the death of Krishan Lal to the notice and knowledge of the deceased Sumer Chand and till his death he never questioned the Will and now after his death, the plaintiffs have filed this suit out of greed and as such they are estopped on account of act and conduct of Sh. Sumer Chand from filing the suit.