Arun Palli, J. - (1.) SUIT filed by the plaintiff -Bishan Dutt @ Bishan Dev was decreed by the learned trial Court vide judgment and decree dated 12.05.2012. Appeal preferred by defendant Narender Kumar (defendant No. 1) against the said decree failed and was accordingly dismissed by the learned First Appellate Court vide judgment and decree dated 27.04.2013. That is how defendant No. 1 is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred by their original positions in the suit.
(2.) IN a suit filed by the plaintiff, he sought a declaration that he is the owner in possession of the property as described in para No. 1 of the plaint to the extent of 1/6th share and so are defendants No. 1 and 2 and are also the owners in possession of the said property. Mutation No. 4543 and subsequent revenue entries changed on the basis of said mutation showing Smt. Chhajiya as co -owner/co -sharer in the suit land was wholly illegal and void and the same did not create any right, title or interest of any kind in her favour and were liable to be corrected. Likewise, the Will dated 30.04.2010 is a forged and fabricated document and the same does not create any title in favour of defendant No. 1. By way of consequential relief, decree for permanent injunction was prayed for, restraining defendants No. 1 and 4 from dispossessing the plaintiff and also from alienating or transferring the suit land in any manner. Briefly, the case set out by the plaintiff was that the suit land was/is ancestral in nature in the hands of Balm (now deceased), father of the plaintiff and defendant No. 1. It was maintained that the plaintiff, defendant No. 1 and Gian Chand, the late father of defendant No. 2 were coparceners in the said land and their father Ballu was 'Karta' of the said joint Hindu family/coparcener. Thus, on the death of Ballu, suit land was inherited by all the three brothers in equal shares by way of survivorship. However, on account of a mistake and inadvertence of the revenue officials, the mutation of inheritance No. 4543 in respect of the suit land was entered and sanctioned in favour of all the three brothers and also Smt. Chhajiya (now deceased) their mother, Smt. Chhajiya, indeed had no right to inherit the suit land as the same was ancestral/coparcenary. Thus, the Will purported to have been executed by her in favour of defendant No. 1 was also of no consequence. Additionally, the said Will was a result of fraud and misrepresentation. Smt. Chhajiya was seriously ill due to paralysis and was bedridden. The Will in question was executed just about 16 days before her death. Further, Smt. Beena (defendant No. 4) was legally married wife of Gian Chand, late brother of plaintiff and defendant No. 2 Dheeraj is the son of Gian Chand and Smt. Beena. After the death of Gian Chand, Smt. Beena performed re -marriage with defendant No. 1 Narender Kumar. Thus, the share of Gian Chand has been inherited by defendant No. 2 as his sole successor. Thus, the suit.
(3.) DEFENDANTS No. 1, 2 and 4, inter alia, in their defence, denied that on the death of Ballu, suit land was inherited by plaintiff in equal share by way of survivorship according to provisions of Hindu Law. Therefore, it was maintained that mutation No. 4543 was correctly recorded in the name of Smt. Chhajiya. It was asserted that Smt. Chhajiya executed the Will on 30.04.2010 in favour of defendant No. 1 being a co -sharer in possession of the suit land and the said testament was a validly executed document by Smt. Chhajiya with her free will and consent.;