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2018 DIGILAW 1630 (HP)

Kishori Lal v. Girdhari Lal

2018-09-11

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Plaintiff is the appellant, who after having lost before both the learned Courts below, has filed the instant appeal. 2. Plaintiff has sought declaration to the effect that land i.e. (i) land measuring 3-04-58 Hects, bearing Khewat No.27, Khatauni No. 28, Khasra Kita-19; (ii) land measuring 0-41-02 Hects being share out of total land measuring 0-72-41 Hects bearing Khewat No. 28, Khatauni Nos. 29, 30, Khasra Kita-11; (iii) land measuring 01-08- 98 Hects bearing Khewat No. 85, Khatauni Nos. 101, 102, 103, 106, 108, 109, bearing Khasra Nos. 678, 719, 28, 420, 677, 422, 676, 674, 690, 693, 698, 716, 717, 683, 685 qua the share of Sita Ram, as per jamabandi for the year 2001-02, situated in Village Khurwain, Mauza Momaniar, Tehsil Bangana, District Una, H.P. (hereinafter referred to as the suit land) is jointly owned and possessed by the plaintiff along with defendant Nos.1 to 8 being successors-in-interest of deceased Sita Ram and the alleged Wills dated 07.05.2001 and 25.05.2005 bearing Basika Nos. 44 & 90, respectively, alleged to be executed by deceased Sita Ram in favour of defendants No.8 to 11, are wrong, illegal, null and void having no bearing on the rights of the plaintiff qua his share. In addition to above, consequential relief of permanent injunction and in the alternative relief of joint possession were also sought for. 3. It was averred by the plaintiff that earlier the suit land was owned and possessed by Sita Ram, who died on 07.11.2006, leaving behind plaintiff and defendants Nos. 1 to 8, as his successors. During his life time, said Sita Ram was residing with the plaintiff and was being looked after by him and the suit land and other property of said Sita Ram was also being managed by the plaintiff. It was further averred that the plaintiff spent handsome amount on the performance of last rites of said Sita Ram. On the other hand, defendants No.3 to 8 were residing at Lucknow for the last so many years and never served deceased Sita Ram at any point of time. It was further averred that the plaintiff spent handsome amount on the performance of last rites of said Sita Ram. On the other hand, defendants No.3 to 8 were residing at Lucknow for the last so many years and never served deceased Sita Ram at any point of time. It was also averred that defendants No.1, 10 and 11 being very clever and head strong persons started threatening the plaintiff to alienate the suit land and to take forcible possession by ousting the plaintiff upon which the plaintiff collected the revenue records which revealed that the defendants in connivance with some other persons have got executed two fake and fictitious Wills dated 07.05.2001 and 25.05.2005 alleged to be executed and registered by said Sita Ram in favour of defendants No.8 to 11, whereas, there was no occasion to execute such Wills. Lastly, the plaintiff requested the defendants not to advance such illegal and unwarranted threats and to admit his genuine and lawful claim to which they refused. Hence, the suit was filed. 4. All the defendants were duly served, but defendants No.2 to 9 filed their joint written statement admitting whole of the plaintiff''s claim and vide judgment dated 18.08.2008, suit was decreed against the said defendants. However, the suit was contested by defendants No.10 and 11 by filing joint written statement which was also adopted by defendant No.1 vide statement dated 14.03.2008, wherein preliminary objections regarding maintainability of suit, locus standi, cause of action, estoppel and that plaintiff has not come to the Court with clean hands, were raised. On merits, it was denied that deceased Sita Ram used to reside with the plaintiff or was being looked after by him. It was averred that said Sita Ram used to live with Girdhari Lal i.e. father of answering defendants, who served and looked after him. Sita Ram died in the house of answering defendants and his last rites were also performed by them. It was though averred that both the Wills executed by said Sita Ram are genuine, however, Will dated 07.03.2001 executed in favour of defendants No.8 to 11 was cancelled by said Sita Ram on 25.05.2005 through cancellation deed and on the same date, he executed another registered Will in their favour and the mutation on the basis of said Will has also been entered in the revenue records. 5. 5. In response, the plaintiff filed replication to the written statement in which the contents of written statement were denied and those of plaintiff were reaffirmed. 6. On 18.08.2008, the learned trial Court framed the following issues:- "1. Whether the plaintiff is entitled for decree for declaration, as prayed for? OPP. 2. Whether the suit is not maintainable, as alleged? OPD. 3. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 4. Whether the plaintiff is estopped from filing the present suit, as alleged? OPD. 5. Relief." 7. After recording evidence and evaluating the same, the learned trial Court on 29.04.2014 dismissed the suit filed by the plaintiff and the appeal filed against the said judgment and decree has also been dismissed by the learned first appellate Court on 26.10.2015, constraining the plaintiff to file the present appeal. 8. On 18.07.2016, this Court admitted the present appeal on the following substantial question of law:- "Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse is vitiated and not legally sustainable?" 9. However, during the pendency of this appeal, the parties have now entered into a compromise and the same has been set out and annexed with CMP No. 8336 of 2018. However, during the pendency of this appeal, the parties have now entered into a compromise and the same has been set out and annexed with CMP No. 8336 of 2018. In terms of the compromise, the parties have agreed that so far as the properties detailed hereinbelow:- "(i) land comprised in Khasra No. 599 area measuring 0-01- 30 hectares, situate in Tika Khurwain, Mauza Momaniar, Tehsil Bangana, District Una, Himachal Pradesh, Una, Himachal Pradesh; (ii) Land measuring 0-02-40 hectares being 240/1707 share in total land measuring 0-17-07 hectares in Khasra No.653, situated in Tika Khurwain, Mauza Momaniar, Tehsil Bangana, District Una, H.P. (iii) Land comprised in Khasra No.584, measuring 0-23-41 hectares to the extent of 768/2341 share towards north situated in Tika Khurwain, Mauza Momaniar, Tehsil Bangana, District Una, H.P., and (iv) Entire land comprised in Khasra No.598, situated in Tika Khurwain, Mauza Momaniar, Tehsil Bangana, District Una, Himachal Pradesh, Una, Himachal Pradesh, are concerned, the possession of entire land has already been given to appellant Kishori Lal and the parties admit the appellant to be owner in possession of aforesaid properties and the rest of the properties be mutated in favour of parties according to the Will exhibit DW-1/B dated 25.05.2005 executed by late Sh. Sita Ram. 10. It has further been agreed to between the parties that the suit of the appellant be decreed in view of the aforesaid agreement and the revenue authorities be directed to reflect the appellant to be owner in possession of aforesaid properties and with respect to rest of properties, the same be ordered to be mutated in favour of the parties in accordance with the Will dated 25.05.2005 exhibit DW-1/B, executed by late Sh. Sita Ram. 11. I have gone through the contents of the compromise and find that the same is not only lawful, but also find that the same has been filed by applicant, respondent No.2 Bimla Devi on behalf of respondents No.3 to 7 and 9, being their Special Power of Attorney and by respondent No.10 on behalf of respondents No.1 and 11 being their Special Power of Attorney. 12. Accordingly, the suit of the plaintiff-appellant is decreed by declaring him owner in possession of the properties as mentioned at Sr.No.(i) to (iv) and further as regards the remaining properties, the same are directed to be mutated in favour of the parties according to the Will Ex. 12. Accordingly, the suit of the plaintiff-appellant is decreed by declaring him owner in possession of the properties as mentioned at Sr.No.(i) to (iv) and further as regards the remaining properties, the same are directed to be mutated in favour of the parties according to the Will Ex. DW-1/B dated 25.05.2018, executed by late Shri Sita Ram. 13. Accordingly, the revenue authorities are directed to carry out necessary corrections in the revenue records, as expeditiously as possible and in no event later than 31st December, 2018. 14. It is, however, made clear that in the event of there being breach or violation of any of the conditions as agreed to between the parties, it shall be open to the aggrieved party, irrespective its being plaintiff or defendant, to enforce the compromise by filing an execution to this effect. 15. The appeal of the appellant is allowed in the aforesaid terms. The terms of the compromise as incorporated in the compromise deed along with the contents of compromise as reproduced in CMP No.8336 of 2018 shall form a part and parcel of the decree. Pending application, if any, also stands disposed of.