Sher Singh vs Ishra Bai

Arun Palli, J.—Suit filed by the plaintiff Ishra Bai was dismissed by the learned trial Court vide judgment and decree dated 03.01.2011. Appeal preferred against the said decree succeeded and was accordingly accepted. And suit of the plaintiff was decreed. That is how the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

Ishra Bai filed a suit for injunction, wherein, she claimed herself to be the sister of the defendants, and they being sons and daughter of deceased Makhan Singh. Originally, Makhan Singh, father of the parties, was the owner in possession of the land measuring 43 kanals 19 marlas. Makhan Singh was stated to have died on 22.08.1991 and the parties to the lis were his only heirs. The estate of Makhan Singh was inherited by the plaintiff and other heirs of Makhan Singh to the extent of 1/7th share each i.e. 6K-6M each out of the suit property. It was maintained that Makhan Singh never executed any Will in favour of the defendants and the said defendants after the death of Makhan Singh, in the year 2006, got prepared a false and fabricated Will, which did not bear the thumb impressions of said Makhan Singh. Said Will dated 15.06.1991 was unregistered and fabricated document and was anti dated. The said document was got prepared by the defendants in connivance with the revenue officers and thereafter, on the basis thereof, defendants managed to get the mutation entered and sanctioned on 16.03.2006 at the back of the plaintiff. It was averred that the plaintiff never appeared before any revenue officer at the time of sanctioning of the mutation. In fact, plaintiff acquired knowledge about this illegal act of the defendants in the month of March 2007 when she got the copy of the revenue record from Halqa Patwari. It was pleaded that the plaintiff and defendants were legally entitled to inherit the land measuring 6K-6M each out of the suit property and it was further submitted that the defendants could alienate the suit land only to the extent of 6K-6M each and not more than their respective share. Thus, the suit land was purported to be joint between the parties and was yet to be partitioned.

Defendants pleaded in defence that in fact, at the time of sanctioning of mutation of inheritance of Makhan Singh, in favour of the defendants on the basis of Will dated 15.06.1991, the plaintiff herself made a statement whereby she relinquished her share in favour of the defendants. Thus, after sanctioning of the mutation of inheritance of Makhan Singh, defendants became the co-owners in joint possession over the suit land to the extent of 1/4th share each and it was so recorded in the record of rights. It was maintained that no injunction could be granted against a true owner. However, it was conceded that the parties to the lis were the heirs of deceased Makhan Singh.

On an analysis of the matter in issue and the evidence on record, learned trial Court was of the view that Ex. D2 showed the possession of the defendants and till date plaintiff had not challenged the said mutation or Will and as such, the simple suit for injunction was not maintainable. Further, the documents on record i.e. jamabandis and khasra girdawaris apparently showed that the defendants had become owners to the extent of 1/4th share each and when they were being shown to be owners in revenue record, which is per se admissible, they could not be restrained from alienating any khasra number or more than 1/7th share each. Therefore, no injunction could be issued against a lawful owner of the property. Accordingly, the learned trial Court vide judgment and decree dated 03.01.2011 dismissed the suit.

Being dis-satisfied with the said decree, plaintiff preferred an appeal. Learned First Appellate Court reviewed the matter in issue and the evidence on record in its entirety and on the analysis thereof, arrived at a conclusion that indisputably the suit property was originally owned by Makhan Singh father of the parties. Makhan Singh died on 22.09.1991. Post demise of Makhan Singh, defendants were claiming themselves to be owners in possession of the suit property on the basis of Will dated 15.06.1991, purported to have been executed by Makhan Singh in their favour. On the contrary, plaintiff was claiming share in the suit property on the basis of natural succession. It was observed that the position of law was settled that the mutation does not confer title. Defendants to prove themselves to be the exclusive owners of the suit property, they were required to prove the Will dated 15.06.1991. However, neither the said Will was produced by the defendants, least proved on record as read in law. Merely on the basis of mutation, which was got sanctioned by the defendants at the back of the plaintiff on 16.03.2006, defendants could not claim, title or ownership in the suit property. Concededly, the plaintiff happened to be the daughter of late Makhan Singh and was one of his heirs and thus entitled to inherit his estate along with the other legal heirs. Therefore, the finding of the trial Court that the defendants were the owners of the suit property merely on the basis of mutation dated 6.03.2006, was patently wrong. Likewise, the finding recorded by the trial Court that suit of the plaintiff for permanent injunction was not maintainable as the plaintiff had not challenged the mutation as well as the Will, was equally wrong and perverse. The specific case set out by the plaintiff in a plaint was that the Will whereby the defendants got the estate of Makhan Singh mutated in their favour was forged and fabricated document. It was observed, on one side, the trial Court held that issues No. 1 and 3 had become redundant as the suit was for the injunction simpliciter but on the other hand declared the defendants to be the owner of the suit property and that too on the basis of mutation, without calling the defendants to prove their title on the basis of Will being propounded by them. Once, the defendants failed to produce and prove the Will on the basis whereof they were claiming themselves to be exclusive owners in possession, they could not held to be the owners of the suit property merely on the basis of mutation. Accordingly, the findings recorded by the trial Court were held to be perverse and against the facts on the record. Consequently, vide judgment and decree dated 20.04.2012, the appeal was accepted and the suit of the plaintiff was decreed. Accordingly, she being one of the co-sharers, the defendants were restrained from alienating more than their share as well as specific khasra numbers out of the suit property, except by way of partition.

I have heard learned counsel for the appellant at length and examined the judgments rendered by both the Courts below. Learned counsel for the appellant could not show or point out as to how the findings recorded by the learned First Appellate Court were perverse or the conclusions arrived at were contrary to the evidence on record. Needless to assert, injunction being claimed by the plaintiff was sought to be defeated by the defendants by propounding a Will of their father, late Makhan Singh. Once, defendants failed to produce and prove the said Will, they could not defeat the injunction being prayed for by the plaintiff.

In the wake of the position set out above and the conclusions that have been recorded by the learned First Appellate Court, there hardly exists any ground, least plausible in law to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration in the present appeal. The same being devoid of merit is accordingly dismissed.