Smt Geeta And Another vs Smt Khilwanti
2021 Latest Caselaw 115 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil First Appeal No. 294/2016

1.   Smt Geeta wife of Shri Prem Singh by caste Koli, resident
of 90/2, Near Anand Bhawan, Rambagh, Nai Basti,
Bhagwanganj, Ajmer.
2.   Shri Rajendra Singh son of Shri Prem Singh by caste Koli,
resident of 90/2, Near Anand Bhawan, Rambagh, Nai Basti,
Bhagwanganj, Ajmer.
                                                  ----Appellants-Defendants
                                   Versus
Smt Khilwanti wife of Shri Rajendra Prasad, by caste Koli
resident of 90/2, Near Anand Bhawan, Rambagh, Nai Basti,
Bhagwanganj, Ajmer.
                                                                ----Respondents

For Appellant(s) : Mr. Rohan Jain, through VC. For Respondent(s) : Mr. Rahul Agarwal, through VC.

HON'BLE MR. JUSTICE INDERJEET SINGH Order

07/01/2021

1. Instant Appeal has been filed by the appellants-defendants

against the judgment and decree dated 11.03.2016 passed by the

trial court whereby the suit filed by the respondent-plaintiff has

been decreed.

2. Brief facts of the case are that the respondent-plaintiff

(hereinafter to be referred as 'plaintiff') filed a suit under Order 7

Rule 1 CPC against the appellants-defendants (hereinafter to be

referred as 'defendants') before the learned trial court, which was

transferred to the Court of Additional District Judge No.2, Ajmer

for its final adjudication. In the suit it was stated by the plaintiff

that the property in dispute, details of which are mentioned in

para-1 of the plaint, belonged to late Shri Jagannath (father-in-

law of defendant no.1 as well as plaintiff and grandfather of

defendant no.2), who has given it to the plaintiff through a will

(2 of 5) [CFA-294/2016]

executed on 18.08.2001, which was duly registered in the office of

Sub-Registrar, Ajmer on 21.08.2001. Late Shri Jagannath died on

17.9.2002 at Ajmer and after his death the plaintiff became the

sole owner and title holder of the suit property. It was further

alleged that the defendant No.2 son of the defendant No.1 is

having illegal encroachment over the property in dispute for which

they have no right and on asking by the plaintiff to the defendants

to vacate the suit property the defendants vehemently denied and

threatened to destroy/damage the suit property and to alienate

the same.

3. After notices being served, the defendants appeared before

the learned trial court and filed written statement and denied the

averments made in the plaint. It was stated in the written

statement that after marriage, the defendant No.1 became part of

the family and having title over the property in dispute and is

residing in the said property. It was also stated that the

defendants as well as the plaintiff are members of one unit and

hence the defendants are having valid and legal right and title in

the suit property. It was also stated that the defendant No.1 and

her son are residing in the property which she received from her

father-in-law and the plaintiff is only residing in the suit property

whereas the defendants are regularly and continuously using the

suit property. It was further stated that the alleged will by which

the plaintiff is claiming her right in the suit property does not

belong to the suit property because in the will it has been

mentioned by the executant of the will that in the eventuality of

his death, her daughter-in-law Geeta would reside in the property,

in such circumstances no one is having right to restrain the

defendant. It was also stated that the executant of the will Shri

(3 of 5) [CFA-294/2016]

Jagannath during his life time had distributed/partitioned his

property in favour of all his sons.

4. On the basis of the pleadings of the parties the trial court

framed as many as four issues which read as under:-

1. क्या स्वर्गीय श्री जगन्नाथ ने विवादित सम्पति की वसीयत वादिया के हक़ में कर दी थी?

-- वादी

2. क्या प्रतिवादीगण विवादित सम्पति पर अतिक्रमणी है ?

-- वादी

3. क्या वाद शल् ु क कम अदा किया गया है ?

-- वादी

4. अनुतोष?

5. In support of her case, the plaintiff examined herself as PW-

1 and also Rajendra as PW-2 and in support of documentary

evidence, exhibited eight documents-Ex.1 to Ex.8 and in rebuttal

the defendants examined Smt. Geeta (defendant no.1) as DW1

and Shankar Lal as DW-2 and Govind Ram as DW-3 and also

exhibited documents Ex.A1 & Ex.A2.

6. The learned trial court after hearing the parties and taking

into consideration the evidence on record, decreed the suit filed by

the plaintiff vide judgment and decree dated 11.03.2016. Hence,

this civil first appeal has been filed by the defendants challenging

the judgment and decree passed by the learned trial court dated

11.03.2016.

7. Heard counsel for the parties.

8. Counsel for the defendants submitted that the trial court has

committed error in deciding the issues No.1 & 2 in favour of the

plaintiff. Counsel further submitted that the trial court has not

properly considered the evidence available on record and wrongly

decide the issue No.3 as well.

(4 of 5) [CFA-294/2016]

9. Per contra counsel for the plaintiff submitted that the trial

court has rightly decided the issues No.1 & 2 in favour of the

plaintiff on the basis of the evidence available on record. Counsel

further submits that the plaintiff is residing in the property in

dispute which was given to her by her father-in-law through the

will dated 18.08.2001 which was duly registered in the office of

Sub-Registrar, Ajmer on 21.09.2001. Counsel further submits that

after death of her father-in-law the defendants encroached over

the property in dispute. Counsel further submits that the

defendants had also filed a suit for cancellation of the said will

which was dismissed by the trial court vide order dated

17.05.2007 and again the defendants filed a civil suit in which the

temporary injunction application was also dismissed by the trial

court vide order dated 11.03.2016 and when the defendants

refused to hand over the possession of the disputed property, the

plaintiff has filed the present suit. Counsel further submits that the

plaintiff is a lawful owner of the property in dispute and the trial

court has rightly decreed the suit filed by the plaintiff. Counsel

further submits that the judgment and decree passed by the trial

court has already been executed.

10. I have considered the arguments raised by counsel for the

parties and also perused the record.

11. So far as issue No.1 is concerned the trial court has

considered the evidence of PW-1 as well as PW-2 with regard to

execution of will. The will was executed by father-in-law of the

plaintiff on 18.08.2001 which was duly registered in the office of

Sub-registrar, Ajmer on 21.09.2001. The trial court has rightly

considered the documents including the will (Ex.1) as well as the

evidence of PW-1 and PW-2 and further the trial court has also

(5 of 5) [CFA-294/2016]

considered the fact that the defendants had also filed a civil suit

for cancellation of will dated 18.08.2001 which was dismissed by

the civil court on 17.05.2007 and no further appeal has been filed

by the defendants against the order dated 17.05.2007 and also

the fact that the defendants filed a suit for permanent injunction

in which the application for temporary injunction was dismissed on

11.03.2011, therefore, it can safely be held that the trial court has

not committed any illegality in deciding the issue no.1 in favour of

the plaintiff.

12. So far as issue no.2 is concerned, in my considered view the

trial court on the basis of the evidence of PW-1 & PW-2 and also

taking into consideration the registered will (Ex.1) decided this

issue in favour of the plaintiff and held that the plaintiff is lawful

owner of the property in dispute, therefore, it can safely be held

that the trial court has rightly decided the issue No.2 in favour of

the plaintiff and held that the defendants have encroached over

the property in dispute.

13. So far as issue No.3 is concerned the defendants have not

submitted any evidence in support of their case, therefore, issue

No.3 has rightly been decided by the trial court against the

defendants.

14. In view of the above discussion and in my considered view

the trial court has not committed any illegality in decreeing the

suit in favour of the plaintiff.

15. Hence, this appeal is devoid merit and the same is

accordingly dismissed.

(INDERJEET SINGH),J

MG/71

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