SHEILA Vs. DHATNU

JUDGEMENT

(1.) THIS is a defendants appeal in a suit for possession of 71 kanals and 14 marlas of land situate in village Kundal Teh -sil Kishtwar District Doda. The dispute between the parties relates to the property of one Man Chand who was the son of Sehja and who died leaving behind his widow Dhansaro. The plaintiff, Dhatnu, is the brother of Man Chand and has filed the present suit for possession on the ground that he is the next reversionary of Man Chand, the other heirs having died already. The facts admitted and found by the courts below are as follows: -

(2.) MAN Chand died leaving behind his son, Brij Lal and a daughter Jasoda. After the death of Man Chand, Brij Lal entered into the possession of the property which was mutated in his name and he died leaving behind his widow Mst. Mani, his sister Jasoda and his mother Dhansaro. After the death of Brij Lal his widow Mani came into possession of the property, which was mutated in her name. Mst. Mani, widow of Brij Lal, died somewhere in the year 1990 (Bikrami) and this is the point from which the dispute between the parties starts. According to the plaintiffs, after the death of Mani Jasoda came into possession of the property, although she was not entitled to the same because Mst. Dhansaro her mother was still alive. The plaintiff Dhatnu could not have filed a suit for possession so long as Dhansaro who was a limited owner was alive. Nevertheless Jasoda came into possession of the property and Dhansaro does not appear to have raised any objection to this. Mst. Dhansaro died in the year 2002 (Bikrami). Before the death of Mst. Dhansaro, however, the Hindu Inheritance (Amendment) Act was passed which introduced a sister as a nearer heir to the mother and thus the possession of Jasedar which, to begin with, may have been unlawful became lawful and Jasoda would be deemed to have continued as an heir under the said Amendment and her possession must, therefore, be referable to her lawful title as a limited owner under the Hindu Law. It is further alleged by the plaintiff that after the death of Jasoda in 2006 she was succeeded by her two daughters Sheila and Roma, but the plaintiff took possession and later on was dispossessed by defendants 1 and 2. Hence the present suit.

(3.) THE suit was resisted by the defendants mainly on the ground that Jasodas possession over the property in question was adverse and the suit was, therefore, barred by limitation. We might mention here that in the written statement defendants 1 and 2 clearly pleaded that Jasoda had succeeded as an heir of Brij Lal and held a life interest. Nowhere have defendants 1 and 2 suggested in their written statement that the possession of Jasoda was either adverse or hostile nor is theft any allegation of animus possidendi having been asserted by Jasoda. Both the courts below, after apprising the evidence came to the finding that after the death of Mani Jasoda came into possession of the property even while she was not an heir under the Hindu Law then and Mst. Dhansaro, the mother of Brij Lal, should have succeeded to the property of Brij Lal. The courts have also found that by virtue of the Hindu Law Inheritance Act of 1997 Jasoda became an heir in preference to her mother. The defendants further submitted that Sheila and Roma succeeded to the property of Jasoda as her legal heirs and the plaintiffs, therefore, had no right to bring a suit for possession. The two courts below have accepted the case of the plaintiff and have decreed the suit for possession holding that the defendants have no title to the property.