SURAJ BAI W/O LATE KALUJI Vs. SHANTI LL

JUDGEMENT

(1.) This is plaintiff's first appeal under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 5-2-2007 passed by 7th Additional District Judge, Ujjain in Civil Suit No. 25-A of 2004, whereby the plaintiffs suit for declaration and injunction has been dismissed.

(2.) Briefly stated the appellant/plaintiff filed a suit for declaration that the Will, dated 24-4-1990 executed by her deceased husband Kaluji in favour of defendant No. 1 (Nephew of deceased Kaluji) to be forged and fabricated document and being null and void is not binding upon the plaintiff. She also sought declaration that the sale deed dated 22-12-2003 executed by defendant No. 1 on the strength of the said Will in respect of agricultural land bearing Survey No. 89 Rakba 40/9 Hectares situated at Village Banbana, Tehsil Nagda, District Ujjain in favour of defendant No. 2 to be null and void as according to her the defendant No. 1 was having no right to execute the sale deed of the aforesaid land, therefore, no right has accrued in favour of the defendant No. 2 on the basis of the said sale deed. A decree of injunction was also sought that the defendant Nos. 2 and 3 be restrained from interfering into her possession over the suit land.

(3.) Before the Trial Court the defendant No. 1 did not appear and the Trial Court proceeded ex parte against him. The defendant Nos. 2 and 3 submitted their written statement and denied the plaint averments. According to the defendant Nos. 2 and 3 they had purchased the suit land from defendant No. 1, who was having valid title to sell the land as the suit land was bequeathed to him by his uncle late Kaluji by executing a Will, dated 24-4-1990 in his favour. According to the defendant Nos. 2 and 3, the said Will executed by Kaluji in favour of defendant No. 1 is not a forged or fabricated document, but is a genuine Will and on the basis of which the defendant No. 1 was fully empowered to execute the sale deed. The defendant Nos. 2 and 3 also stated that the land was purchased by defendant No. 2 from defendant No. 1 for a consideration of RS.4 lakhs. They further stated that the possession of the land was handed over to them on 22-12-2003 by defendant No. 1 in whose name the land was already mutated and from the date of possession they are cultivating the land and getting the crops. They denied the plaintiff's plea that she is in possession.