HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil First Appeal No v. Smt Soni Devi W/o Shri Chhaju Ram Sharma, daughter of Shri Kishan Lal, R/o

appellant (for short ‘the defendant’) against the judgment and decree dated 14.09.2005 passed by the Additional District Judge (Fast Track) No.2, Jaipur, District Jaipur (for short ‘the trial court’), whereby the suit filed by the plaintiff-respondent(for short ‘the plaintiff’) for declaration and permanent injunction has been decreed in her favour. Brief facts of the case are that the plaintiff filed a suit against the defendant for declaration and permanent injunction to the effect that the disputed land belongs to Khatedari of Shri Rampratap @ Pratap S/o Balu as mentioned in Para No.1 of the plaint. Ram Pratap died after coming into force of the Hindu Succession Act, 1956. So, Shri Kesra and Smt. Nathi were having equal shares in the land of Shri Ram Pratap. On 11.06.1963, [2025:RJ-JP:2733] (2 of 9) [CFA-631/2005] mutation was entered in the name of Kesra for the entire land, which was contrary to law. Smt. Nathi was entitled for half share in the disputed land. Smt. Nathi had died on 21.02.1999. After death of Smt. Nathi, plaintiff-Smt. Soni is entitled for half share in the disputed land. In the half share of the disputed land of plaintiff-Smt. Soni, Ghanshyam and Kanhaiya Lal are doing cultivation. On 09.11.2001, when plaintiff went to give her statement in the case of “Bhagwan Vs. Harinaryana”, she came to know that on account of illiteracy of plaintiff and her mother, Kesra had got opened the mutation of entire land in his name without any legal right and on 11.06.1997, Kesra had transferred through Will one half share of Smt. Nathi to the defendant without any right. So, the Will executed by Kesra regarding transfer of half share of the disputed property of plaintiff’s mother to the defendant be declared null and void. Defendant filed the written statement and denied the contentions/averments made by the plaintiff and stated that besides son Kesra and daughter Smt. Nathi, one Chandi was also daughter of Shri Ram Pratap, who died. Shri Ram Pratap died before coming into force of Rajasthan Tenancy Act as well as Hindu Succession Act. So, Kesra was the sole legal heir of Ram Pratap. Smt. Nathi was not entitled to get half share of the disputed land. Mutation was also entered in the name of Kesra and Kesra in his life time handed over the disputed land to the defendant. Plaintiff knew about the said Will when she submitted an affidavit on 14.07.2000 in the earlier suit. So, the present suit is time barred. Value of the disputed land is not less than Rs.10 lacs insufficient deficit court fees was paid. [2025:RJ-JP:2733] (3 of 9) [CFA-631/2005] The plaintiff filed the present suit. Smt. Nathi had not challenged the said Will in her life time. So, the plaintiff-Smt. Soni had no right to challenge it. On the pleadings of the parties, the trial court framed the following issues. “1. Whether the death of Ram Pratap alias Pratap took place after coming into force of Hindu Succession Act, 1956?

2. Whether after the death of Shri Ram Pratap, Kesra and Nathi became successors of his property?

3. Whether without any lawful right, will dated 11.06.1997 executed by Kesra in favour of defendant Harinarayana in relation to entire agricultural land of Shri Ram Pratap is liable to be declared as ineffective?

4. What would be the effect of rejection of the suit on account of averments made in para No.21 of the written statement?

5. Whether Smt. Nathi in her lifetime and Smt. Soni except did not raise any objection with regard to mutation opened in the name of Kesra, nor they were claimed their right, share and possession in the disputed land in any other suit except the present one, and, therefore, now she is estopped from doing so far as the rights of Kesra in the said agricultural land?

6. Whether Ram Pratap had died prior to coming into force of the Rajasthan Tenancy Act and what would be the effect of this fact in the present suit?

7. Whether the plaintiff is entitled for perpetual injunction?

8. Whether the suit is within limitation?

9. Relief? [2025:RJ-JP:2733] (4 of 9) [CFA-631/2005]

10. Whether mutation No.27 got opened by Kesra in his favour on 11.06.1963 in relation to the half share of Smt. Nathi was ineffective?

11. Whether the actual price of the disputed property is Rs. 10 lacs and the plaintiff has paid deficit court fee? To prove her case, plaintiff got examined herself as PW-1, Kanhaiya Lal as PW-2, Sardar Singh as PW-3,Chhitar as PW-4 and Amar Singh as PW-5 and to prove his case, defendant got examined himself as DW-1 and got examined Banshi Lal as DW-2, Badri Narain as DW-3, Ladu Ram as DW-4, Prabhu Narain as DW- 5, Gopal as DW-6 and Bhagwan Sahai as DW-7. Learned senior counsel for the defendant submits that the trial court has committed an error in decreeing the suit in favour of the plaintiff. The trial court has not appreciated the evidence led by the parties in the right perspective. Learned senior counsel for the defendant further submits that the plaintiff claimed half portion of the estate of late Ram Pratap but she had not sought any relief of partition. So, the present suit filed by the plaintiff was not maintainable. Learned senior counsel for the defendant further submits that the disputed land was in possession of the defendant. In the life time of Kesra, he being unmarried was maintained by the defendant. The mutation was opened in favour of the defendant in the year 1963. Smt. Nathi had not challenged the said mutation. So, on the basis of principles of estoppel, the plaintiff Smt. Santosh Devi had no right to challenge the same. Learned senior counsel for the defendant further submits that the plaintiff in her evidence clearly proved that Ram Pratap died prior to coming into force of Hindu Succession Act and [2025:RJ-JP:2733] (5 of 9) [CFA-631/2005] Rajasthan Tenancy Act. So, Nathi did not acquire any right, title or interest at the time of death of Shri Ram Pratap. Learned senior counsel for the defendant also submits that the trial court wrongly came to the conclusion that Ram Pratap died after coming into force of Hindu Succession Act and Rajasthan Tenancy Act. The trial court wrongly relied upon the notice (Ex.6), reply of the notice (Ex.7) and order-sheets of Gram Panchayat, Bilwa (Ex.9). Learned senior counsel also submits that these documents were not proved in evidence and the trial court wrongly came to the conclusion that these are public documents. The plaintiff failed to adduce any cogent evidence that Ram Pratap had died after the year 1956, whereas the defendant in his evidence proved that Ram Pratap died in the year 1954. So, finding of the trial court that as per the Hindu Succession Act, Nathi Devi was entitled to get half share in the disputed property deserves to be set-aside. Learned senior counsel for the defendant also submits that mother of the plaintiff had waived her all right by way of not challenging the mutation or the Will. Khatedari rights, if any, stood extinguished by virtue of Section 63 of the Rajasthan Tenancy Act. So, the present plaintiff Smt. Soni Devi had no right to file the suit. Learned senior counsel for the defendant also submits that the plaintiff had not filed any appeal against the mutation order. Kesra had expired on 06.02.1998 and the plaintiff in her evidence admitted that at the time of death of Kesra, plaintiff knew that mutation was opened in the name of Kesra for the disputed [2025:RJ-JP:2733] (6 of 9) [CFA-631/2005] property. She also came to know that he had executed a Will in favour of the defendant. Learned senior counsel for the defendant also submits that brothers of the defendant had also filed a suit challenging the Will in which plaintiff-Soni Devi appeared as a witness and submitted her affidavit on 14.07.2000 and asserted that the Will was wrongly executed by the Kesra. The present suit has been filed by the plaintiff in the year 2003. So, the present suit was not within limitation. Learned senior counsel for the defendant also submits that mutation was opened in the name of Kesra in the year 1963, but the trial Court wrongly quashed the mutation entries. Present suit is not within the limitation. Learned senior counsel also submits that genuineness of the Will was decided in the previous suit. So, the trial Court has committed an error in quashing the Will executed by Kesra. So, the present appeal filed by the defendant be allowed and the judgment and decree dated 14.09.2005 passed by the trial Court be set aside. Learned senior counsel has placed the reliance upon the following judgments:-

1. Vasantha (Dead) Thr. LR. Vs. Rajalakshmi @ Rajam (Dead) Thr. LRs. Passed in civil appeal No. 3854/2014 decided on 13.02.2024.

2. Jagannath and Ors. Vs. State of Rajasthan and Ors. in civil writ petition No. 5495/2002 decided on 11.03.2016. Learned counsel for the plaintiff has opposed the arguments advanced by the learned Sr. counsel for the defendant and [2025:RJ-JP:2733] (7 of 9) [CFA-631/2005] submitted that it is an admitted position that the disputed land belongs to Ram Pratap. Smt. Nathi and Kesra were legal heirs of late Ram Pratap. Learned counsel for the plaintiff also submits that defendant failed to prove that Ram Pratap had died in the year 1954 before coming into force of Hindu Succession Act and Rajasthan Tenancy Act. Plaintiff in her evidence exhibited the notice as (Ex-6) which was given to Ram Pratap by Gram Panchayat, Bilwa and reply to notice (Ex-7) and the order-sheets of the Gram Panchayat, Bilwa (Ex-9). Learned counsel for the plaintiff further submits that the trial Court rightly considered the genuineness of this documents as they were the public documents. Shri Ram Pratap had died after the year, 1956. So, as per Section 8 of the Hindu Succession Act, Nathi Devi was co-sharer of the disputed land with Kesra. So, Kesra had no right to execute the will of the entire land. He had only right to execute the Will of his share i.e. half of the share of the disputed land. Learned counsel for the plaintiff further submits that the suit filed by the Ghan Shyam and Bhagwana had no relevance to the present suit. Although, the said suit was dismissed but the plaintiff was not a party in the said suit. The plaintiff had half share of the disputed land. So, she was entitled to file the present suit. Learned counsel for the plaintiff also submits that mutation opened in favour of Kesra was not according to Law. As per the Law, after the death of Ram Pratap, mutation should be opened in favour of Kesra as well as Nathi. So, there was no limitation for declaring the said mutation as null and void. So, the trial court [2025:RJ-JP:2733] (8 of 9) [CFA-631/2005] rightly decreed the suit in favour of the plaintiff. So, the present appeal being devoid of merit, is liable to be dismissed. I have considered the arguments advanced by learned senior counsel for the defendant as well as learned counsel for the plaintiff. It is an admitted position that the disputed land belongs to Ram Pratap. Nathi and Kesra were legal heirs of Ram Pratap. The defendant failed to prove that the Ram Pratap had died in the year

1954. Plaintiff in her evidence proved the notice(Ex-6) given by the Gram Panchayat, Bilwa, reply to the notice (Ex.7) and order- sheets of the Gram Panchayat, Bilwa (Ex.9). There is no evidence that these documents were forged one. In my considered opinion, the trial court rightly observed that these are the public documents and presented after obtaining from custody. Ram Pratap had died after coming into force of Hindu Succession Act and Rajasthan Tenancy Act. So, Kesra and Smt. Nathi had equal share in the disputed land. Kesra had no power to execute the Will of the entire land except of his share. Rights of Nathi as well as Smt. Soni Devi was not decided in the previous suit. As per Section 8 of the Hindu Succession Act, 1956, after the death of Ram Pratap, Kesra and Smt. Nathi were co-sharer in the disputed property and they had equal share in the disputed land. So, Kesra had no right to execute the Will of the entire land in favour of the defendant. The findings given in previous suit which was filed by the Ghan Shyam and Bhagwana, was not binding on the plaintiff because plaintiff was not a party in the suit and on account of Will, mutation entered in the name of Kesra was void ab initio. So, question of limitation does not arise. The plaintiff in her statement [2025:RJ-JP:2733] (9 of 9) [CFA-631/2005] clearly proved that she had knowledge of the said Will on

14.07.2000 and then she filed the present suit within limitation. So, in my considered opinion, the trial court has not committed any error in decreeing the suit filed by the plaintiff in her favour. So, the present appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, also stand(s), dismissed. Gourav/261 (NARENDRA SINGH DHADDHA),J