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2003 DIGILAW 52 (RAJ)

Saraswati v. Devendra Kumar

2003-01-13

SUDHIR VERMA

body2003
SINGHAL, Member – The appellant-defendant has filed this appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short ``the Act) against the judgment and decree of Revenue Appellate Authority, Hanumangarh dated 31.8.96, by which her appeal No. 358/94 under Section 223 of the Act has been dismissed. (2). In short, the facts of the case are that the respondents-plaintiffs, Devendra Kumar, Satpal and Hanuman, filed a suit in the court of Asstt. Collector, Sangaria impleading the appellant and respondents No. 4 to 9 as defendants under Sections 88, 188 and 53 of the Act stating that the disputed land measuring 48 bighas specifically mentioned in para- 3 of the plaint belonged to their grand-father Maluram who has now died. It has been alleged in the plaint that during his life time Maluram executed a registered will of above said 48 bighas of land in the name of respondents-plaintiffs on 13.11.83, which has been registered by the Sub-Registrar on 14.11.83. On the basis of the will they are entitled to be declared as khatedar tenant of the land equally. The appellant-defendant Saraswati who is the daughter of deceased Maluram intend to evict them from the disputed land with connivance of respondents-defendants No.4 to 9. Hence they may be restrained by permanent injunction and suit land be partitioned between respondents and plaintiff equally. (3). The respondents-defendants No.5 to 7 did not appear despite the service of summons, therefore, suit proceeded ex- parte against them. Appellant-defendant Saraswati and Jagdish filed their reply stating that Maluram did not execute any will during his lifetime and the so-called will is forged one. It was also stated that after the death of Maluram Mutation has been accepted in the name of appellant and respondents No.4 to 8. It has been accepted in the name of appellant and respondents No.4 to 8. It has also been averred in the reply that the disputed land is ancestral property, therefore, Maluram can only execute will to the extent of his one fourth share. (4). The trial court after framing necessary issues and recording evidence decreed the suit of the respondents-plaintiffs vide its judgment dated 7.2.92 to the extent of 16 bighas, holding that Maluram could execute will to the extent of his share only. Aggrieved by this the respondent-plaintiffs and appellant-defendant filed separate appeals before learned Revenue Appellate Authority, Hanumangarh which has been decided as aforesaid. Aggrieved by this the respondent-plaintiffs and appellant-defendant filed separate appeals before learned Revenue Appellate Authority, Hanumangarh which has been decided as aforesaid. Now this second appeal has been filed by the appellant-defendant. (5). We have heard the learned counsel of both the parties and perused the impugned judgment and also have gone through the record of the case. (6). The learned counsel for the appellant Mr. Bhargava has argued that Maluram had never executed so-called will during his lifetime and the will is forged one but both the courts below have erred in treating the will as genuine. He has also argued that when the so-called will was forged, then no right, title or interest accrues to the respondents-defendants in the disputed land. He has also argued that the appellant is the co-sharer of the disputed land along with other legal heirs of Maluram on the disputed land. On the contrary learned counsel of the respondents Mr. Pandya while supporting the judgment of the courts below has argued that Maluram made will in favour of respondents-plaintiffs of the disputed land and he had already partitioned other land belonging to him between his sons. Maluram was enjoying the disputed land has his self-acquired property, therefore, both the courts below have erred in decreeing the suit of the respondents- plaintiffs to the extent of one-third share only. He has contended that no appeal or cross objections has been filed by the respondents-plaintiff even then under Order 41 Rule 33 of the CPC the court has powers to make such further Order as the case may require. (7). We have considered the rival contentions of both the parties. (8). It is not disputed that the appellant Saraswati is the daughter of Maluram and Rajkumar and Kashi Ram are the sons of Maluram. It is also not in dispute that the disputed property was in the khatedari of Maluram. Both the courts below have come to the conclusion while deciding issue No.6 that the disputed land is an ancestral property, which had come in the hands of Maluram from his father Chunniram. The respondents-plaintiffs Devendra Kumar, PW.1, have also admitted this fact in his statement made during the course of trial. Therefore, there can be no two opinions about it that the disputed land was not ancestral property in the hands of Maluram. The respondents-plaintiffs Devendra Kumar, PW.1, have also admitted this fact in his statement made during the course of trial. Therefore, there can be no two opinions about it that the disputed land was not ancestral property in the hands of Maluram. We are not at all convinced by the arguments advanced by the learned counsel of the respondents that the disputed land must be deemed to be the separate property in the hands of Maluram, as he had already partitioned other land to his sons. Firstly, no convincing or reliable evidence has been led by the respondents-plaintiffs in this regard; secondly the respondent-plaintiff has himself admitted on oath that the disputed property was in the hands of Maluram as ancestral property. (9). So far as the execution of will by Maluram in favour of respondents-plaintiffs is concerned, both the courts below have come to the conclusion that Maluram had executed a will, which was registered. In this connection we have also gone through the evidence produced by the respondents-plaintiffs. After going through the statements of Ramswaroop, PW.2, Bhoop Singh, PW.3, and Nabi Baksh, PW.4 the execution of will (Exhibit- 2) is proved. Therefore, we find no force in argument of the learned counsel of the appellant that Maluram had never executed will in favour of the respondents-plaintiffs. When the execution of will has been proved by the respondents-plaintiffs there remains no suspicion that the will is fraudulent one. (10). Now the question arises as to whether the respondents-plaintiffs are entitled to be declared as khatedar tenants of whole of the disputed land, which has been entered in Exhibit-2. Since the disputed land was ancestral property in the hands of Maluram, therefore, he could have made will only to the extent of his share. There is no doubt that in the disputed land the share of Maluram comes to one-third only, i.e., 16 bighas. Hence both the courts below have committed no illegality in passing the impugned judgments. (11). The respondents-plaintiffs have neither filed cross appeal nor cross objection against the impugned judgment nor it has been proved that the disputed land belonged to Maluram as his self-acquired or separate property. Hence no question arises to invoke powers envisaged under Order 41 Rule 33 of the CPC. (12). In the result, the appeal fails and it is hereby dismissed. Pronounced in the open court.