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2021 DIGILAW 58 (RAJ)

Geeta Koli v. Khilwanti

2021-01-07

INDERJEET SINGH

body2021
JUDGMENT : Inderjeet Singh, J. 1. Instant Appeal has been filed by the appellants-defendants against the judgment and decree dated 11.03.2016 passed by the trial court whereby the suit filed by the respondent-plaintiff has been decreed. 2. Brief facts of the case are that the respondent-plaintiff (hereinafter to be referred as 'plaintiff') filed a suit under Order 7 Rule 1 CPC against the appellants-defendants (hereinafter to be referred as 'defendants') before the learned trial court, which was transferred to the Court of Additional District Judge No. 2, Ajmer for its final adjudication. In the suit it was stated by the plaintiff that the property in dispute, details of which are mentioned in para-1 of the plaint, belonged to late Shri Jagannath (father-in-law of defendant No. 1 as well as plaintiff and grandfather of defendant No. 2), who has given it to the plaintiff through a will executed on 18.08.2001, which was duly registered in the office of Sub-Registrar, Ajmer on 21.08.2001. Late Shri Jagannath died on 17.9.2002 at Ajmer and after his death the plaintiff became the sole owner and title holder of the suit property. It was further alleged that the defendant No. 2 son of the defendant No. 1 is having illegal encroachment over the property in dispute for which they have no right and on asking by the plaintiff to the defendants to vacate the suit property the defendants vehemently denied and threatened to destroy/damage the suit property and to alienate the same. 3. After notices being served, the defendants appeared before the learned trial court and filed written statement and denied the averments made in the plaint. It was stated in the written statement that after marriage, the defendant No. 1 became part of the family and having title over the property in dispute and is residing in the said property. It was also stated that the defendants as well as the plaintiff are members of one unit and hence the defendants are having valid and legal right and title in the suit property. It was also stated that the defendant No. 1 and her son are residing in the property which she received from her father-in-law and the plaintiff is only residing in the suit property whereas the defendants are regularly and continuously using the suit property. It was also stated that the defendant No. 1 and her son are residing in the property which she received from her father-in-law and the plaintiff is only residing in the suit property whereas the defendants are regularly and continuously using the suit property. It was further stated that the alleged will by which the plaintiff is claiming her right in the suit property does not belong to the suit property because in the will it has been mentioned by the executant of the will that in the eventuality of his death, her daughter-in-law Geeta would reside in the property, in such circumstances no one is having right to restrain the defendant. It was also stated that the executant of the will Shri Jagannath during his life time had distributed/partitioned his property in favour of all his sons. 4. On the basis of the pleadings of the parties the trial court framed as many as four issues which read as under: 1- D;k LoxhZ; Jh txUukFk us fookfnr lEifr dh olh;r okfn;k ds gd+ esa dj nh Fkh\ oknh 2- D;k Áfroknhx.k fookfnr lEifr ij vfrØe.kh gS\ oknh 3- D;k okn 'kqYd de vnk fd;k x;k gS\ oknh 4- vuqrks"k\ 5. In support of her case, the plaintiff examined herself as PW-1 and also Rajendra as PW-2 and in support of documentary evidence, exhibited eight documents-Ex. 1 to Ex. 8 and in rebuttal the defendants examined Smt. Geeta (defendant No. 1) as DW1 and Shankar Lal as DW-2 and Govind Ram as DW-3 and also exhibited documents Ex. A1 & Ex. A2. 6. The learned trial court after hearing the parties and taking into consideration the evidence on record, decreed the suit filed by the plaintiff vide judgment and decree dated 11.03.2016. Hence, this civil first appeal has been filed by the defendants challenging the judgment and decree passed by the learned trial court dated 11.03.2016. 7. Heard counsel for the parties. 8. Counsel for the defendants submitted that the trial court has committed error in deciding the issues No. 1 & 2 in favour of the plaintiff. Counsel further submitted that the trial court has not properly considered the evidence available on record and wrongly decide the issue No. 3 as well. 9. 7. Heard counsel for the parties. 8. Counsel for the defendants submitted that the trial court has committed error in deciding the issues No. 1 & 2 in favour of the plaintiff. Counsel further submitted that the trial court has not properly considered the evidence available on record and wrongly decide the issue No. 3 as well. 9. Per contra counsel for the plaintiff submitted that the trial court has rightly decided the issues No. 1 & 2 in favour of the plaintiff on the basis of the evidence available on record. Counsel further submits that the plaintiff is residing in the property in dispute which was given to her by her father-in-law through the will dated 18.08.2001 which was duly registered in the office of Sub-Registrar, Ajmer on 21.09.2001. Counsel further submits that after death of her father-in-law the defendants encroached over the property in dispute. Counsel further submits that the defendants had also filed a suit for cancellation of the said will which was dismissed by the trial court vide order dated 17.05.2007 and again the defendants filed a civil suit in which the temporary injunction application was also dismissed by the trial court vide order dated 11.03.2016 and when the defendants refused to hand over the possession of the disputed property, the plaintiff has filed the present suit. Counsel further submits that the plaintiff is a lawful owner of the property in dispute and the trial court has rightly decreed the suit filed by the plaintiff. Counsel further submits that the judgment and decree passed by the trial court has already been executed. 10. I have considered the arguments raised by counsel for the parties and also perused the record. 11. So far as issue No. 1 is concerned the trial court has considered the evidence of PW-1 as well as PW-2 with regard to execution of will. The will was executed by father-in-law of the plaintiff on 18.08.2001 which was duly registered in the office of Sub-registrar, Ajmer on 21.09.2001. The trial court has rightly considered the documents including the will (Ex. The will was executed by father-in-law of the plaintiff on 18.08.2001 which was duly registered in the office of Sub-registrar, Ajmer on 21.09.2001. The trial court has rightly considered the documents including the will (Ex. 1) as well as the evidence of PW-1 and PW-2 and further the trial court has also considered the fact that the defendants had also filed a civil suit for cancellation of will dated 18.08.2001 which was dismissed by the civil court on 17.05.2007 and no further appeal has been filed by the defendants against the order dated 17.05.2007 and also the fact that the defendants filed a suit for permanent injunction in which the application for temporary injunction was dismissed on 11.03.2011, therefore, it can safely be held that the trial court has not committed any illegality in deciding the issue No. 1 in favour of the plaintiff. 12. So far as issue No. 2 is concerned, in my considered view the trial court on the basis of the evidence of PW-1 & PW-2 and also taking into consideration the registered will (Ex. 1) decided this issue in favour of the plaintiff and held that the plaintiff is lawful owner of the property in dispute, therefore, it can safely be held that the trial court has rightly decided the issue No. 2 in favour of the plaintiff and held that the defendants have encroached over the property in dispute. 13. So far as issue No. 3 is concerned the defendants have not submitted any evidence in support of their case, therefore, issue No. 3 has rightly been decided by the trial court against the defendants. 14. In view of the above discussion and in my considered view the trial court has not committed any illegality in decreeing the suit in favour of the plaintiff. 15. Hence, this appeal is devoid merit and the same is accordingly dismissed.