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2013 DIGILAW 866 (HP)

SURINDERA DEVI v. VEENA DEVI

2013-10-04

RAJIV SHARMA

body2013
JUDGEMENT RAJIV SHARMA, J. - 1. THIS Regular Second Appeal is directed against the judgment and decree, dated 24.9.2012, passed by learned Additional District Judge I, Kangra at Dharamshala, in Civil Appeal No. 76 G/2009. 2. 'KEY facts' necessary for adjudication of this Regular Second Appeal, are that the appellant/plaintiff (hereinafter referred to as "the plaintiff" for the sake of convenience) filed a suit for declaration against the respondents/defendants (hereinafter referred to as "the defendants" for the sake of convenience) to the effect that she was owner in possession of the suit land comprised in Khata No.23, Khatauni No.33, Khasra No.2075, measuring 0-02-03 hectares and Khata No. 24, Khatauni No.34, Khasras No. 2071, 2074, and 2076 measuring 0-18-48 hectares to the extent of 11/18 shares and 9/10 shares respectively as per jamabandi for the year 1999-2000 and also of the property owned and possessed by Bansi Lal, son of Dhannu after his death on 13.1.1983. According to the plaintiff Bansi Lal died issueless and was unmarried. He was sole successor of his father. He had no sister namely Ishwari Devi and mutation No.198 qua estate of Bansi Lal sanctioned on 21.7.1986 in favour of Ishwari Devi and subsequent mutation No.454 sanctioned and attested on 31.10.1996 in favour of defendants No. 1 and 2 were wrong. The plaintiff also sought relief of permanent prohibitory injunction restraining defendants from interfering in the ownership and possession of the plaintiff. According to the plaintiff, she is daughter of Purni Devi. After death of Purni Devi, mutation No. 499 was sanctioned and attested in her favour on 30.9.1997 on the basis of registered Will. According to the plaintiff, she and her mother being illiterate had no knowledge about wrong entries in the revenue record. According to her, defendant No.3, who was a shrewd person, in collusion with revenue agencies, got mutation of estate of Bansi Lal sanctioned and attested fraudulently in favour of his mother. The suit was contested by the defendants. According to them, they were not aware of any Will allegedly executed by Purni Devi in favour of the plaintiff. They admitted that Bansi Lal was unmarried. He was not sole successor of Dhannu, but Ishwari Devi being daughter of Dhannu was also his successor. Dhannu had two children, one Bansi Lal and another Ishwari Devi, mother of defendants No. 1 and 2. They admitted that Bansi Lal was unmarried. He was not sole successor of Dhannu, but Ishwari Devi being daughter of Dhannu was also his successor. Dhannu had two children, one Bansi Lal and another Ishwari Devi, mother of defendants No. 1 and 2. According to them, since daughters were not earlier entitled to get share in the land, due to which mutation of inheritance was sanctioned in the name of Bansi Lal only. Ishwari Devi being sister of Bansi Lal was sole successor of Bansi Lal. Mutation of inheritance was rightly sanctioned and attested in favour of Ishwari Devi and she was absolute owner in possession qua the share of Bansi Lal in the suit land. Mutation was sanctioned in the year 1986 and this fact was within the knowledge of the plaintiff and after death of Ishwari Devi, defendants succeeded to her estate being natural successors. The plaintiff had no concern with the estate of Bansi Lal. Mutation No. 198 was rightly sanctioned and attested in favour of Ishwari Devi and subsequent mutation No. 454 attested in favour of defendants No. 1 and 2 was also legal, lawful and binding on the plaintiff. Defendant No.1 Roshan Lal died during pendency of the suit before learned trial court and his legal representatives, namely, Veena Devi, Amit Sharma and Rajan were brought on record. 3. THE replication was filed by the plaintiff. Learned trial court framed the issues on 7.9.2005 and dismissed the suit of the plaintiff vide judgment and decree dated 26.6.2009. 4. FEELING aggrieved, the plaintiff preferred an appeal before learned first appellate court, who dismissed the same vide judgment and decree dated 24.9.2012. Hence, the regular second appeal. Mr. Vikas Bhardwaj, on the basis of substantial questions of law framed, has vehemently argued that the plaintiff has duly proved that Ishwari Devi was not sister of Bansi Lal. He has then contended that both the courts below have misread and misconstrued oral as well as documentary evidence. 5. MR. Rajnish K. Lall, Advocate, has supported the impugned judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have ou perused the pleadings carefully. Pw1, Manohar Lal, led his evidence by way of filing an affidavit. 5. MR. Rajnish K. Lall, Advocate, has supported the impugned judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have ou perused the pleadings carefully. Pw1, Manohar Lal, led his evidence by way of filing an affidavit. He placed on record power of attorney, Ext.Pw1/A. According to him, the plaintiff was sole legal heir of her mother Purni Devi and mutation No. 499 to this effect on the basis of will was sanctioned in her favour on 30.9.1997. Bansi Lal, son of Dhannu was the nephew of Punri Devi and Bansi Lal throughout his life remained unmarried and Bansi Lal had no sister. Defendant No.3 in collusion with revenue agencies got mutation of estate of Bansi Lal sanctioned and attested fraudulently in favour of his maternal grand mother. The plaintiff came to know about the collusive entries in the revenue record on filing of the suit for permanent prohibitory injunction by defendant No.2. The plaintiff made inquiries from the revenue agencies. In cross examination, he admitted that prior to 1956, daughters were not entitled to inherit the property. Dhannu was not known to him. He denied that Dhannu had one son and one daughter and name of daughter of Dhannu was Ishwari. 7. PW 2, Bihari Lal, also led his evidence by way of filing an affidavit. In cross examination, he admitted that Dhannu had one son namely Bansi Lal and daughter Ishwari Devi. Leelawati and Roshan Lal are children of Ishwari Devi. He admitted that estate of Dhannu was inherited by Bansi Lal and land was not mutated in the name of Ishwari Devi because earlier daughters had no right to inherit the estate of deceased. He admitted that after the death of Bansi Lal, his estate was inherited by Ishwari Devi. 8. DW 1, Amit Kaushal, also led his evidence by way of filing an affidavit. According to the averments contained in the affidavit, Dhannu died prior to 1956. The estate of Dhannu was inherited by Bansi Lal, who was brother of Ishwari Devi. Bansi Lal remained unmarried during his life time and was issueless. After his death, his estate was inherited by Ishwari Devi being sole successor. After the death of Ishwari Devi, mutation of inheritance was sanctioned in favour of Roshan Lal and Leela Devi. The estate of Dhannu was inherited by Bansi Lal, who was brother of Ishwari Devi. Bansi Lal remained unmarried during his life time and was issueless. After his death, his estate was inherited by Ishwari Devi being sole successor. After the death of Ishwari Devi, mutation of inheritance was sanctioned in favour of Roshan Lal and Leela Devi. No threats were ever raised by them to construct a house over the suit land. He further deposed that the plaintiff started construction work over the suit land, due to which Leela Devi filed a suit against the plaintiff. The plaintiff has not led any tangible evidence to prove that Ishwari Devi was not sister of Bansi Lal. There is no evidence led by the plaintiff that she is legal heir of Bansi Lal. As noticed above, PW2 Bihari Lal admitted in his cross examination that Ishwari Devi was sister of Bansi Lal and the estate of Dhannu was inherited by Bansi Lal. He further admitted that the estate of Dhannu was not mutated in the name of Ishwari Devi because at that time, daughters had no right to inherit the estate of deceased. The plaintiff never raised objection with regard to ownership and possession of the defendants, when Civil Suit No.196/2001 was filed by Leela Devi against her and one Gokal on 6.12.2001. It is evident from pedigree table of the year 1975 76, Ext.P3 that father of Bansi Lal was Dhannu. Inheritance of share of Purni by the plaintiff vide mutation No.499 dated 30.9.1997 has no bearing in this case. Mutation No.454 was sanctioned in favour of defendants No.1 and 2, namely Roshan Lal and Leela Devi respectively on 31.10.1996, vide Ext.P5. Vide Ext.P6, mutation No.198 was sanctioned in favour of mother of defendants No. 1 and 2 on 21.7.1986. Since the plaintiff was not legal heir of Bansi Lal, she had no right to succeed to his property after his death on 13.1.1983. Mutation No.198, dated 21.7.1986 and mutation No.454 dated 31.10.1996 have rightly been sanctioned and attested by the competent authority. In jamabandi for the year 1975-76, Ext.P2, Ishwari Devi has been shown to be sister of Bansi Lal, who inherited the estate of Bansi Lal after his death. Mutation No.198 was attested on 21.7.1986. This order has attained finality. Mutation No. 198 has been prepared by the revenue officials in discharge of their official duties. In jamabandi for the year 1975-76, Ext.P2, Ishwari Devi has been shown to be sister of Bansi Lal, who inherited the estate of Bansi Lal after his death. Mutation No.198 was attested on 21.7.1986. This order has attained finality. Mutation No. 198 has been prepared by the revenue officials in discharge of their official duties. The plaintiff never challenged ownership and possession of the defendants in the suit filed against her by Leela Devi bearing Civil Suit No. 196/2001. Learned courts below have correctly appreciated oral as well as documentary evidence. The plaintiff has failed to prove that Ishwari Devi was not sister of Bansi Lal. 9. ACCORDINGLY, in view of the discussions and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.