OM PRAKASH Vs. SANJAY KUMAR

JUDGEMENT

(1.) The plaintiff instituted, a suit, for declaration against the defendants. The suit of the plaintiff, stood decreed, by the learned trial Court. In an appeal carried therefrom, by the defendants, before the learned First Appellate Court, the latter Court dismissed the appeal, whereupon, it concurred, with the verdict, recorded by the learned trial Court. In sequel thereto, the defendants/appellants herein, are, driven to institute, the, instant appeal herebefore.

(2.) Briefly stated the facts of the case are that plaintiff Kaushalya Devi filed suit for declaration, possession with consequential relief of injunction pleading that suit land compromising land measuring 2.44.03 Hectares, being shares of Khata No. 6, Khatauni Nos 14, 16, 17, 20 to 24 field Nos 1564, 1565, 330, 333, 334, 336, 247, 247, 248, 249, 251, 254, 267, 359, 481, 484, 487, 488, 245, 478, 1639, 246, 250, 274, 275, 332, 333, 337, 486, 483, 485, 1636,1638, 1640, 331, 482, 243,244, 252, 338, 489, 479 kita 41 area 4.88.07 Hectsland measuring 0.02.41 Hects. Being 40/180 shares of Khata Nos 22, Khatauni No. 78, 79 field No. 1999, 2028, 2030, 2027, 2029 kita 5 area measuring 0.10.83, hects and land measuring 0.04.26 hectares being 1/3 share of Khata No. 23 khatauni No. 80 field No. 1991 area 0.12.78 hectares totalland 2.50.79 hectares as entered in the Jamabandi for the year 1994-95 situated at Mohal Chaplah Tehsil Dehra District Kangra was in ownership and possession of one Ram Rakhi. Her husband had expired before enforecement of Hindu Succession Act, 1956 and she had inherited the suit land from her husband and thereby became absolute owner in possession ofl the same. The plaintiff and proforma defendant No. 3 Smt. Ajudhya Devi are the real sisters of Jagan Nath. Hence, after the death of Ram Rakhi, they are entitled to succeed to the suit land by virtue of heirs of Ram Rakhi, they are entitled to succeed to the suit land by virtue of heirs of Jagan Nath since Ram Rakhi died issueless. The defendants No. 1 and 2 Om Prakash and Suresh Kumar in collusion with scribe, witnesses and Patwari Halqua forged and fabricated one Will purported to have been executed by RamRakhi in their favour and consequently, got mutation No. 199 entered in their favour. The plaintiff has pleaded that both the defendants are strangers and are not related to the deceased They have threatened to interfere in possession of plaintiff. Hence, suit for declaration was filed with the prayer that plaintiff and proforma defendant No. 3 be declared owners in possession of suit property. Further, the prayer was made to restrain the defendants from interfering in possession of plaintiff over the suit property. The prayer was also made for possession in case, defendants would found in possession.

(3.) The defendant No 1 filed written statement wherein they took preliminary objections as to maintainability, locus standi, and estoppel, non-joinder of necessary parties and valuation of lthel suit. On merits, defendants stated that Ram Rakhi was their sister-in-law, and the defendants had been looking after Ram Rakhi who used to stay with the defendants. Consequently, Ram Rakhi during her life time had executed valid Will dated 3.11.1996 in favour of defendant Nos 1 and 2 to the extent of 2/3 share and to the extent of 1/3rd share in favour of plaintiffs in respect of her property. The plaintiff and proforma defendants are married and staying with their in-laws. Hence,on the basis of will a valid mutation qua the suit property it was in their possession. Son there was no question to interfere in the possession of plaintiff,hence prayed for dismissal of the suit. The defendant No. 3 filed separate written statement wherein she admitted the case of the plaintiff and categorically pleaded that late Ram Rakhi did not execute any Will in favour of defendants No. 1 and 2. Defendant No. 3,hence prayed to pass a decree in her favour alongwith the plaintiff.