IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 583 of 2008. Reserved on: 18.06.2011. Decided on: 24.06.2011. ______________________________________________ Satya Devi. … Appellant. Versus Brahmu Ram and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Neel Kamal Sharma, Advocate. For the Respondents : Mr. K.B. Khajuria, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 12.5.2008 passed by the learned Additional District Judge, Ghumarwin in Civil Appeal No.31/13 of 2005/04. 2. Material facts necessary for the adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as ”the plaintiff” for convenience sake) instituted a suit 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - against the respondents/defendants (hereinafter referred to as “the defendants” for convenience sake), for declaration and consequential relief of injunction. According to the plaintiff, she became owner in possession of land measuring 14.3 bighas, i.e. the half share of the total land measuring 28.7 bighas comprised in Khasra No. Kittas 7, Khata Khatauni No.178/215 and owner in possession over 4230 shares out of the total land measuring 1-3 bighas comprised in Khasra No.927, Khata Khatauni No.181/218, situate in village Sunhani, Tehsil Ghumarwin, District Bilaspur. 3. According to the plaintiff, Longu Ram executed a ‘will’ of half share of the suit land in her favour and mutation to this effect was also attested on 22.9.1995. The defendants had contested the suit. According to them, the suit land was in possession of defendant No.2, Lachhmi Devi being the widow of Longu Ram. According to them, the plaintiff in connivance with the revenue staff has got the revenue entries changed in her favour, which are wrong, illegal and not binding on them. Thus, mutation No.1721 was also wrong and illegal. According to them, no will was ever executed by Longu Ram in favour of the plaintiff. It was also averred that when defendant No.2 came to know about the wrong mutation, she filed an appeal against the order of Assistant Collector 2nd Grade dated 22.9.1995. 4. Replication was filed by the plaintiff. The learned trial Court framed the issues on 16.11.2000. The learned Civil Judge - 3 - (Senior Division), Bilaspur dismissed the suit on 19.6.2004. Thereafter the plaintiff preferred an appeal before the learned Additional District Judge, Ghumarwin. He dismissed the appeal on 12.5.2008. Hence this regular second appeal. 5. The appeal was admitted by this Court on 3.12.2010 on the following substantial question of law:- 1. When the plaintiff claimed herself to be owner in possession over the land in dispute by virtue of will executed in favour of the plaintiff by late Sh. Longu Ram, have both the courts below acted in erroneous and perverse manner in declining decree of declaration and permanent prohibitory injunction ?” 2. Whether both the courts below have misread the pleadings, oral and documentary evidence in recording arbitrary and mechanical findings in holding that the plaintiff has failed to prove that the plaintiff is not owner in possession over the land in dispute and respondents are interfering over the land in question? 6. Mr. Neel Kamal Sharma, learned counsel for the plaintiff has strenuously argued that the plaintiff has proved her case that she is owner in possession of the suit land on the basis of ‘will’ dated 28.4.1995. He then contended that both the courts - 4 - below have misread and misconstrued the oral and documentary evidence. 7. Mr. K.B. Khajuria has supported the judgments and decrees of both the courts below. 8. I have heard the learned counsel for the parties and gone through the record carefully. 9. Since both the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. According to her, she became owner of half share of the total land by way of ‘will’. According to her, the ‘will’ was executed in her favour by Longu Ram on 28.4.1995 and mutation was sanctioned in her favour on 1.9.1995. There is no reference of the ‘will’ dated 28.4.1995 in the plaint and the date of attestation of mutation in the plaint is 22.9.1995 instead of 1.9.1995. According to her, the original Will was lost by her. She has admitted that the mutation has been sanctioned in her favour in the absence of defendant No.2, Lachhmi Devi. According to her, Will was prepared at Ghumarwin. However, this fact is not mentioned in the plaint where this Will was executed, who was the person who scribed the will and who were the marginal witnesses, the details have not been given. 11. DW-2, Lachhmi Devi has deposed that Satya Devi was not related to Longu Ram and to her. She had seen her for the - 5 - first time in the Court. According to her, her husband Longu Ram has never executed any Will in favour of the plaintiff. She has stated that mutation was attested in favour of the plaintiff in her absence and when she came to know about the same, she filed an appeal and the mutation in favour of the plaintiff was cancelled. Thereafter appeal was filed by the plaintiff before the Commissioner, which was also dismissed. 12. Plaintiff has miserably failed to prove that any Will was ever executed by Longu Ram, husband of defendant No.2 in her favour. The version that the original Will was lost by her cannot be accepted. She has not given the details of the place where the Will was executed nor the person who was scribe of the Will and who were the marginal witnesses. She has admitted that the mutation was attested in her favour in the absence of defendant No.2. There is a detailed procedure the manner in which the mutation has to be attested. There is no material on record to establish that the Will in question was presented before the Assistant Collector, who sanctioned the mutation. The plaintiff is neither related to Longu Ram nor to defendant No.2, Lachhmi Devi. She lives at a distance of about 15 Kilometers in a village named Naresh, Pargna Gehrwin. She has also admitted that defendant No.2 was in possession of the land of late Longu Ram, but self stated that she is in possession of the suit land. Statement of PW-1 does not inspire any confidence and the same has been rightly discarded by - 6 - both the courts below. The courts below have correctly appreciated the oral and documentary evidence on record. 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), Judge. June 24, 2011. (sck).