RAJ KUMAR Vs. RAJINDER KUMAR

JUDGEMENT

(1.) Instant Regular Second Appeal under S.100 CPC, lays challenge to judgment and decree dated 2.8.2018 passed by learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 23-CA/13 of 2017, affirming judgment and decree dated 18.1.2017 passed by learned Civil Judge (Junior Division), Nahan, District Sirmaur, H.P. in Civil Suit No. 66/1 of 2015; whereby suit for declaration with consequential relief of possession having been filed by the appellants-plaintiffs (hereinafter, 'plaintiffs'), came to be dismissed.

(2.) Precisely, the facts as emerge from the record are that the plaintiffs filed a suit for declaration with consequential relief of possession in the court of learned Civil Judge (Junior Division), Sirmaur District at Nahan averring therein that the plaintiffs and defendant No.1 are the legal heirs of late Badri Parshad, who died on 23.4.2014 at Nahan, leaving behind plaintiffs and defendant No.1 as his successors. Wife of above named Badri Parshad, namely Kamla Devi also died on 9.10.2009, as such, property, owned and possessed by Badri Parshad, is to devolve upon the plaintiffs and defendant No.1 being his legal heirs. Plaintiffs further averred that the State of Himachal Pradesh is the owner of suit property as per copy of Jamabandi for the years 2011-12, whereas ownership stands transferred in favour of Badri Parshad by way of Patta through proforma defendant No. 5, as such, at the time of his death, deceased Badri Parshad was absolute owner on the basis of Patta of suit property. Plaintiffs further averred that plaintiff No.1 is the elder son of late Badri Parshad, who maintained plaintiffs No. 2 and 3 and defendant No.1 from his job and he being elder brother was providing/fulfilling all necessary and basic needs of plaintiffs Nos. 2 and 3 and defendant No.1, as such, entire earnings of his life were being spent on the welfare of defendant No.1 and plaintiffs No.2 and 3. Plaintiffs specifically averred in the plaint that plaintiff No.1 used to maintain late Badri Parshad and Kamla Devi. It is further averred in the plaint that Badri Parshad never executed any Will or any document during his life time, bequeathing his property in favour of defendant No.1. Plaintiffs further averred that Badri Parshad was suffering from many ailments and was not in a position to speak properly, as such, alleged Will is a fraudulent document prepared behind the back of Badri Parshad, as such said Will is the result of fraud and misrepresentation and cannot be relied upon. Plaintiffs further averred that Badri Parshad was brought by defendant No.1 to give his surety in a criminal case before the court at Nahan and under the garb of such surety bond, alleged Will was got executed from Badri Parshad in a fraudulent manner. Plaintiffs also averred that at the time of execution of Will, Kamla Devi and Ram Khilawan were not alive and none of the respectable persons was associated in the execution of alleged Will. Plaintiffs also averred in the plaint that since after death of Badri Parshad, property was to devolve upon his legal heirs, they came to know about the alleged Will, but the same does not confer any right, title or interest over the defendant No.1 and the suit property alongwith other properties of deceased Badri Parshad is liable to be inherited by all the legal heirs i.e. plaintiffs and defendant No.1, in equal shares. Plaintiffs further averred that defendant No.1 under the garb of fraudulent Will has forcibly taken possession of the property of Badri Parshad and is going to dispossess the plaintiff from the suit property either by selling the same to others or by way of encumbrance.

(3.) Suit having been filed by the plaintiffs came to be resisted by defendants No.1 and 2 by filing a joint written statement, specifically denying therein that the plaintiffs alongwith defendant No.1 are the legal heirs of Badri Parshad and averred that the plaintiffs have no right, title or interest over the property of Badri Parshad, as the said property is/was self-acquired property of Badri Parshad. Defendant No.1 claimed that after the death of Badri Parshad, plaintiffs have not inherited the property of Badri Parshad including suit property and suit has been filed without any cause of action with a view to harass defendants No.1 and 2. Defendants No.1 and 2 further averred that the deceased Badri Parshad executed a valid Will duly registered with Sub Registrar in his full senses, which was registered on 26.9.2006.