HOSHIAR SINGH Vs. RAJ MAL

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 3.5.1993 passed by the learned Additional District Judge, (II), Kangra at Dharamsala whereby judgment and decree dated 28.12.1991 passed by the learned Sub-Judge Ist Class, Dharamsala has been reversed.

(2.) The case of the Appellant-Plaintiff (hereinafter referred to as the Plaintiff), as made out in the plaint, is that one Mango Ram, father of the Plaintiff, was last male holder of the land bearing Khata No. 124, khatauni Nos. 265 and 266 to the extent of one half share, khata/khatauni No. 128/270 to the extent of 11/28 shares, land bearing khata/khatauni No. 24/93 to the extent of one half share, land bearing khata/khatauni No. 25/54 to the extent of one fourth share, land bearing khata/khatauni No. 31 min/147 to the extent of one half share, situated in Mohal Yol, Tehsil and District Kangra, Himachal Pradesh more specifically detailed in the heading and para 1 of the plaint (hereinafter referred to as the land in suit.) He died leaving behind the Plaintiff as the sole heir of the property. The will dated 22.5.1984 purporting to have been executed by said Mango Ram, as claimed by the Respondents-Defendants (hereinafter referred to as the Defendants), is no will in the eyes of law and is an unvalid document. The land in suit is the ancestral property qua the Plaintiff and the said Mango Ram and could not be disposed of by way of will and thus, the alleged will is not binding on the reversionary rights of the Plaintiff. It is further case of the Plaintiff that he and Mango Ram are Ghrith by caste and agriculturist and are governed by the agricultural customs in the matter of alienation and succession. No will of ancestral property can be made in order to exclude the reversioner. Therefore, the will deserves to be declared void and the Plaintiff is entitled for possession of the suit land. Hence, the suit for possession of the land in suit.

(3.) The Defendants contested the claim of the Plaintiff. In their written statement they took preliminary objections that the suit is not legally and factually maintainable in the present form, that the Plaintiff has no locus standi to file the present suit, that the suit is not properly valued, that the parties are not governed by customs and the custom has been abrogated, the suit is barred by act, conduct and acquiescence of the Plaintiff and that suit is time barred. On merits, the description of the suit land, as given in the plaint, has been denied and it has also been denied that the Plaintiff is the legal heir of Mango Ram. On the contrary, it is claimed that said Mango Ram was uncle of Defendants, who were brought up by the deceased and they served and looked after Mango Ram in his old age which services were never rendered to him by the Plaintiff, who was residing at a different place and was born of the loins of Konga Ram and succeeded him in village Dhaloon. It is thus claimed that the Plaintiff has no concern whatsoever with the suit land which has been bequeathed to the Defendants by virtue of a valid document. Thus, claim of the Plaintiff has been denied, as aforesaid.