Civil courts have jurisdiction over rival tenancy succession claims; rights devolve by statutory succession, not Will; no proprietary vesting for tenants under widows during lifetime.

JUDGMENT :

RAKESH KAINTHLA, J.

1. The present appeal is directed against the judgment & decree dated 07.12.2006, passed by learned Additional District Judge, Fast Track Court, Chamba, vide which the appeal filed by the respondent no. 1-Budhia (plaintiff no. 2 before learned Trial Court) was allowed, and the judgment and decree passed by learned Civil Judge (Senior Division), Chamba (learned Trial Court) were set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking a declaration that Mutation No. 185 dated 14.05.2002 attested on the basis of Will dated 27.11.1984 regarding the land measuring 4-10 Bighas bearing Khasra No. 135 Khata Khatauni no. 32 min/50 situated at village Bharoga, Pargana Kihar, Tehsil Salooni, District Chamba (hereinafter referred to as the suit land) in the name of the defendant is illegal, void and inoperative qua, the rights of the plaintiffs. The plaintiffs also sought possession of the suit land as consequential relief. It was pleaded that late Sh. Panchi was recorded as the tenant of the suit land. He died issueless on 01.02.1992, leaving behind Nimo as his widow. Nimo died on 27.07.2001. A mutation was entered in the name of the plaintiffs in equal share being the heirs of Panchi. However, the defendant got the mutation attested in his favour based on a forged and unattested Will dated 27.11.1984. Panchi had not executed any Will. Tenancy rights could not be bequeathed and are to be inherited by the plaintiffs as per the H.P. Tenancy and Land Reforms Act. Defendant obtained forcible possession of the suit land based on the Will. Hence, the suit was filed to seek the reliefs mentioned above.

3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi and cause of action. The contents of the plaint were denied on the merits. However, it was admitted that Panchi was the tenant of the suit land. It was asserted that he had become the owner on 03.10.1975 after the commencement of the HP Tenancy and Land Reforms Act. He had executed a valid Will in favour of the defendant. The suit was filed without any basis; hence, it was prayed that the same be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The following issues were framed by the learned Trial Court on 31.03.2005:-

1. Whether Will dated 27.11.1984 is forged and illegal as alleged? OPP
2. If issue No.1 is proved in affirmative, whether the mutation dated 14.05.2002 is illegal as alleged? OPP
3. Whether the plaintiffs are entitled for the decree of possession as prayed? OPP
4. Whether the plaintiffs have got no cause of action to file the present suit as alleged? OPD
5. Whether the suit is not maintainable in the present form as alleged? OPD
6. Whether the plaintiffs have got no locus standi to file the present suit as alleged? OPD
7. Relief.

6. The parties were called upon to produce the evidence, and plaintiff Budhiya examined himself (PW-1). The defendant examined Abdul Shakur (DW-1), himself (DW-2) and Chet