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2018 DIGILAW 1299 (HP)

Kuldeep Singh v. Lekh Ram

2018-07-13

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff''s suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence dismissed. 2. Briefly stated the facts of the case are that the plaintiff and defendants were owners of land measuring 110-9 bighas, comprising Khasra Nos. 95, 99, 135, 141, 142, 154, 155, 196, 204 and 247, Khewat/Khatoni No.89/114, situated in village Ghandeer, Pargana Bachhretu, Tehsil Ghumarwin, District Bilaspur, H.P. The plaintiff was joint owner in possession 736/2209 share of the suit land. It was further pleaded that previously Daulat Ram, Ram Singh and Ram Dial were joint owners in possession of 1/2 share of suit land, whereas, Smt. Bazeeru was joint owner of the remaining 1/2 share. On the death of Daulat Ram, his share was inherited by the plaintiff Kuldeep Ram. Smt. Bazeeru, who was owner of 1/2 share of suit land had bequeathed her 1/2 share of suit land in favour of plaintiff, defendants and Smt. Shartaju to the extent of equal share each and thus the plaintiff Kuldeep Singh and Shartaju inherited 1/6 share each of 1/2 share of Smt. Bazeeru of the suit land. Smt. Shartaju was step mother of the plaintiff and the plaintiff inherited her share also on her death and thus the plaintiff became joint owner in possession of 736/2209 share of the suit land, whereas, he was shown joint owner of less land than his actual share in the suit land. The entries in the revenue record qua the share of plaintiff and defendants were wrong and illegal. On 28.8.1993, the defendants threatened to dispossess the plaintiff from the suit land. Hence, the plaintiff had instituted the suit for declaration that he be declared joint owner in possession of 736/2209 share of the suit land and that the defendants be restrained from interfering with his possession qua his share in the suit land. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability, cause of action, estoppel, locus standi, valuation and mis joinder and non joinder of necessary parties. On merits, they admitted that Smt. Bazeeru had executed will dated 7.11.1967 in favour of the plaintiff and defendants. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability, cause of action, estoppel, locus standi, valuation and mis joinder and non joinder of necessary parties. On merits, they admitted that Smt. Bazeeru had executed will dated 7.11.1967 in favour of the plaintiff and defendants. But they have further alleged that the share of the parties were bifurcated as per possession of the defendants and the plaintiff has no right, title or interest over the land in possession of the defendants. They have denied that after death of Smt. Shartaju, her share was inherited by the plaintiff. It is also denied that the plaintiff is in possession of 36.16 bighas are out of the suit land. In nutshell the defendants refuted the case of the plaintiff and they prayed for dismissal of the suit. 4. The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement, and, re-affirmed, and, re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the relief of declaration and permanent prohibitory injunction, as prayed? OPP. 2. Whether the plaintiff is entitled for possession? OPP 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff is estopped to file the suit by his act and conduct? OPD. 5. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom, by, the plaintiff/appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 11.5.2006, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. When the appeal came up for admission, this Court, on 11.5.2006, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the courts below are justified in dismissing the suit of the plaintiff, when it was not in dispute that Shartaju had no children of her own and the plaintiff was her step son and, further it was also not disputed that Bajeeru had made a Will in equal shares in favour of the plaintiff, deceased Shartaju and some other persons? Substantial question of Law No. 1: 8. The parties at contests, do not, rear any contest,vis-a-vis, the factum of valid, and, due execution, of, a Will by one Smt. Bazeeru. The contest inter se them, is, only with respect to the exclusivity, of inheritance, by the plaintiff, of, the share of one Shartaju, his step mother. Both the learned courts below, had dispelled the espousal of the plaintiff, on anvil, of his inability to place on record, the relevant mutation of inheritance. The appellant herein, would surely, succeed in establishing, of his solitarily, inheriting the estate, of his step mother one Shartaju, upon, his placing on record, the apposite mutation, as, stood attested on her demise. However, the plaintiff has abysmally failed to place, on record, the apt mutation attested, on the demise of Shartaju, whereunder, he purportedly stood solitarily bestowed, with exclusive rights, vis-a-vis, her estate. Even if, assumingly, the apposite mutation, as, attested on demise of Shartaju, does not confer exclusive rights upon him, yet he was also enjoined, to cast an appropriate challenge, vis-a-vis, it, by incorporating pleadings, qua the defendants, who purportedly alike him were conferred ownership rights, vis-a-vis, her estate, being disentitled to inherit it. However, rather the aforesaid pleadings are neither cast nor evidence in respect thereof stood adduced. In aftermath, the plaintiff''s espousal, of his being exclusively entitled, to, on demise of Sharataju, hence inherit her estate, being mis-founded, further, corollary thereof, is that the findings of both the learned courts below, hence not suffering from any gross perversity, and, absurdity. 9. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. 9. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law are answered in favour of the respondents/defendants and, against the appellant/plaintiff. 10. In view of the above discussion, there is no merit in the present Regular Second Appeal and it is dismissed accordingly. In sequel, the judgements and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.