BIRBAL Vs. GYARSI

JUDGEMENT

(1.) BRIEF facts giving rise to this second appeal are that plaintiff-appellant Birbal filed a suit for declaration and permanent injunction in the lower Court against the defendants to pass a decree in his favour declaring him to be the successor of late Shri Nathu Ram son of Geeda Ram and that the defendants No. 1 to 4 are not the heirs of deceased Nathu Ram and further that deceased Nathu Ram did not die issueless. It was further prayed in the plaint that the land which has been attached by Tehsildar, Tehsil Neem-ka-Thana, treating the land of late Shri Nathu Ram as escheat property, be released and the same be handed over to the plaintiff. A prayer of permanent injunction was also made that the defendants No. 1 to 5 be restrained from interfering with the possession of the plaintiff and further not to transfer the land in dispute. The plaintiff pleaded in the suit that late Shri nathu ram son of Geeda Ram was an old person and was issueless but he was very affectionate to the plaintiff, therefore, he used to live with the plaintiff. Shri Nathu Ram in his lifetime executed a `will' dated 11. 7. 1981 in favour of the plaintiff. Shri Nathu Ram died on 9. 5. 1982 and, by virtue of execution of the `will' in his favour, the plaintiff became the owner of the property left by late Shri Nathu Ram. However, the Tehsildar without any authority, attached the property left by Shri Nathu Ram treating it to be escheat property as Nathu Ram died issueless.

(2.) THE defendants No. 1 to 4 filed joint written statement in the lower Court wherein they denied the contends of the plaintiff. It was pleaded that Nathu Ram died issueless. THE defendant No. 1 Mst. Gyarsi Devi was cousin sister of late Nathu Ram, therefore, she is successor of late Nathu Ram. THE execution of `will' dated 11. 7. 1981 was denied and it was pleaded that the same is forged one, therefore, it was prayed that the suit of the plaintiff be dismissed. Defendant No. 5 the State of Rajasthan also filed separate written statement wherein the contents of the plaint were denied and it was pleaded that the `will' appears to be forged one. However, it was also pleaded that the person, who is declared successor by the Court, will be entitled to get the property left by late Nathu Ram.

(3.) IT is also relevant to mention that the defendants No. 1 to 4 also filed their cross-objections under Order 41 Rule 22 of the CPC in respect of observations given in Para 24 of the judgment of the lower appellate court to the effect that Mst. Gyarsi did not file any counter-claim to declare that she is entitled to recover the property of late Nathu Ram, therefore, the property left by Nathu Ram is declared as escheat property. The said cross-objections have not been admitted so far by this Court and the same are lying in the file of this second appeal, therefore, they were also heard along with the second appeal itself.