KURA Vs. RAMKISHAN AND ORS

JUDGEMENT

(1.) This is defendant's second appeal under Section 100 of the Code of Civil Procedure (for short, 'C.P.C.') directed against the judgment and decree dated 23rd of July, 1988 passed by the District Judge, Tonk, in Civil Regular Appeal No. 2/84 (74/86), whereby he dismissed the appeal of the defendant and affirmed the judgment and decree dated 23.12.1983 passed by the Munsiff & Judicial Magistrate, Malpura, in Civil Suit No. 89/74, whereby the suit of plaintiff-respondents for declaration and permanent injunction, was decreed. This court, while admitting the second appeal on 22.9.1988, formulated following substantial questions of law:--

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit for declaration and permanent injunction in the lower court wherein it was pleaded that late Shri Kalyan was father of plaintiffs No. 1, 3, 4, 5 and 6 and husband of plaintiff No. 2, who died in Samvat Year 2017. The deceased left the property described in Schedule A and B appended with the suit. It was further pleaded that the plaintiffs are in possession of the entire property left by deceased but they have come to know the defendant Kura got the agriculture land, left by deceased Kalyan, mutated in his name on 12.6.1964. It was pleaded that Kura was not legal heir of deceased Kalyan and he had no right to get the land, left by deceased Kalyan, mutated in his name, therefore, it was prayed that the plaintiffs be declared as legal heirs of deceased Kalyan and they are entitled to occupy the property described in Schedule A and B appended with the plaint and further that the defendant is not the legal heirs of deceased Kalyan.

(3.) The defendant Kura filed his written statement wherein it was pleaded by him that he was taken in adoption by deceased Kalyan in Samvat year 2010 in the month of Kartik and he was living with deceased Kalyan as his son. He also pleaded that the land was rightly mutated in his name after the death of Kalyan. He admitted that the plaintiff Ramkishan and defendant Kura both are the owners of property left by deceased Kalyan, but other plaintiffs do not have any right whatsoever in the property left by deceased Kalyan.