Under the law of succession, heirs in a higher entry of the Class-II schedule take precedence over those in subsequent entries. A surviving brother, being in a higher entry, excludes the descendants of pre-deceased brothers from inheriting the estate of a deceased relative.

JUDGMENT :

VIRINDER AGGARWAL , J .

1. The present Regular Second Appeal (hereinafter referred to as “RSA”) is directed against the judgment and decree dated 23.01.2024 passed by the learned Additional District Judge, Hisar, whereby the appeal preferred by the appellant was dismissed, the appeal preferred by the respondent was allowed, and consequently, the suit instituted by the present appellants which had earlier been partly decreed vide judgment and decree dated 16.08.2016 was ultimately dismissed.

2. Briefly stated, the case set up by the appellant–plaintiff along with proforma respondents is that they are owners in possession of the suit land, fully detailed and described in the head-note of the plaint, in equal shares, being Class-II heirs of deceased Raj Singh. It is pleaded that the mutations pertaining to inheritance have been illegally and unlawfully sanctioned and are liable to be declared null and void, not binding upon the plaintiffs and proforma defendants. A further relief of permanent injunction was also sought restraining the defendants from alienating the suit land.

2.1 It is the case of the plaintiffs that Har Chand was the original owner in possession of the suit land, who died on 02.09.1969, leaving behind four sons, namely Ram Singh, Sultan Singh, Raj Singh, and Dariya Singh. It is further averred that mutation was sanctioned in favour of the said four sons on 19.05.1998. Raj Singh is stated to have died issueless, leaving behind no Class-I heirs. Upon his death, it is pleaded that his surviving brothers, namely Ram Singh, Sultan Singh, and Dariya Singh, being Class-II heirs, became entitled to inherit his estate in equal shares. However, it is alleged that Sultan Singh, in collusion with revenue officials, got the mutation of inheritance of Raj Singh wrongly sanctioned in his favour alone. The said mutation is stated to be a product of fraud and misrepresentation and, therefore, liable to be set aside.

3. The defendants contested the suit by raising preliminary objections regarding maintainability, absence of cause of action, lack of locus standi, and limitation. During the pendency of the proceedings, Smt. Dharmo Devi, daughter of Jai Chand, was impleaded as defendant No.15 upon her application. She filed a written statement as well as a counter- claim, challenging the mutation of inheritance of Har Chand. It was pleaded by her that Har Chand had five sons and that Jai Chand, father of the answering defendant, had predeceased Har Chand. On this basis, it was asserted that the answering defendant, being the daughter of a pre-deceased son of Har Chand, is entitled to 1/5^th share in the estate of Har Chand.

4. Upon a comprehensive and careful scrutiny of the pleadings on record, as well as the rival contentions advanced by the parties, the learned Trial Court deemed it appropriate to crystallize the matters in controversy. Accordingly, for the purpose of a systematic, precise, and legally coherent adjudication, the Court proceeded to frame the following issues for determination:–

1) Whether the plaintiffs are entitled to declaration to the effect that plaintiffs alongwith performa defendants are owners in possession of the suit land in equal shares being the second class legal heirs of deceased Raj Singh and mutation No.2098 dated 16.11.1998 and mutation No.2417 dated 06.12.2005 are against law and facts and liable to be set aside and be corrected in favour of plaintiffs and performa defendants?OPP

2) Whether the plaintiffs are entitled for injunction to the effect that defendants are restrained from alienating the suit land on the basis of wrong entries in the revenue record?OPP

3) Whether the defendants are entitled for the relief as prayed for in the counter claim?OPD

4) Whether the suit of the plaintiffs is not maintainable in the present form?OPD

5) Whether the plaintiffs have no cause of action and locus standi to file the present suit?OPD

6) Whether defendant No. 15, a counter claimant is entitled to the decre