- (1.) THIS regular second appeal preferred by plaintiff is directed against the judgment and decree dated 17.04.1984 passed by learned Senior Sub Judge, Bhiwani, whereby the suit for declaration filed by the plaintiff was dismissed as well as against the judgment and decree dated 17.03.1987 passed by learned Additional District Judge, Bhiwani, whereby the appeal preferred by the plaintiff has also been dismissed. For convenience sake reference to parties is being made as per their status in the civil suit.
(2.) THE detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for declaration alleging that Smt. Misri widow of Rooda was the mother of plaintiff. She was owner in possession of the land measuring 111 kanals 11 marlas situated in village Kelnga, fully detailed in para No.2 of the plaint. Smt. Misri died in the year 1980. After the death of Smt. Misri, plaintiff being the only daughter, became owner in possession of the land in question. Plaintiff had moved an application before the revenue authorities for sanctioning mutation in her favour. It has been further alleged that defendants have no right, title, interest or concern with the suit land and they want to dispossess the plaintiff forcibly and illegally.
(3.) UPON notice, defendants appeared and filed written statement admitting that Smt. Mishri was the owner of the land in question, however, they had become owners during the lifetime of Smt. Misri. It was alleged that they had filed a civil suit against Smt. Misri which was decided in their favour on 07.05.1980 and they were declared as owners in possession of the land. Mutation was also sanctioned in their favour on 26.08.1980 on the basis of civil Court decree. It is further alleged that Smt. Misri had also executed a 'will' in their favour on 24.04.1972 and they have become owner on that basis too. Defendants denied that plaintiff is the daughter of Smt. Misri. Plaintiff had no concern either with Smt. Misri or with the land in question. Plaintiff had no locus standi to file the present suit, plaintiff was estopped by her act and conduct to file the suit, the suit was bad on account of mis -joinder and the suit had not been properly valued for the purpose of court fee and it was not maintainable in the present form. Replication was filed by the plaintiff denying the averments in the written statement and reiterating the averments in the plaint. It was alleged that the decree as well as the 'will' have no effect on the right of the plaintiff and these are result of fraud and misrepresentation. Court of first instance, on the basis of pleadings of the parties, framed following issues: - "1. Whether the plaintiff is the daughter of Smt. Misri wd/o Roorra, If so what effect? OPP 2. Whether the plaintiff is the owner in possession of the suit land? OPP 3. Whether the plaintiff has neither locus -standi nor cause of action to file the suit? OPD 4. Whether the plaintiff is estopped by her acts and conduct? OPD 5. Whether the suit is bad for non -joinder of necessary parties? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the defendants are owners in the possession of the suit land as alleged in para No.9 of the written statement? OPD 8. Whether Smt. Misri executed a valid will dated 24.4.72 in favour of the defendants? OPD 9. Whether the will dated 24.4.1972 and judgment and decree dated 17.5.1980 are not binding on the rights of the plaintiff? OPD 10. Relief.";