IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 01 of 2023 Reserved on: 23.08.2023 Date of Decision: 19^th September,2023 Bidhi Singh ....Appellant Versus Mehar Singh ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? Yes For the Appellant : Mr. Ramakant Sharma & Mr. Parav Sharma, Advocates.

For the R espondent : Mr. Rohit, Advocate.

Rakesh Kainthla,Judge.

The present appeal is directed against the judgment and decree dated 17.09.2022, passed by learned Additional District Judge-II, Kangra, at Dharamshala, District Kangra, H.P. vide which, the appeal filed by the present appellant (plaintiff before the learned Trial Court) was dismissed and judgment and decree dated 18.09.2017, passed by learned Civil Judge, Kangra, District Kangra, H.P. was upheld. (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 plaintiff filed a civil suit before the learned Trial Court seeking a declaration that hfe is a joint owner in possession with the defendant in equal share of the suit property described in para 1 of the plaint being legal representatives of his father late Sh. Balia as per the Will dated 16.05.1996, executed by Sh. Balia and the Tamlik Nama, dated 12.12.2003, is the result of fraud, misrepresentation and undue influence, which has no bearing on the rights of the plaintiff. A consequential relief of a permanent prohibitory injunction for restraining the defendant from interfering with the possession of the plaintiff was also sought. It was asserted that the suit land was previously owned by Sh. Balia as ancestral property. The parties are Ghirth by caste. They are governed by the agricultural custom prevalent in the Kangra District, which prohibits the disposal of the property without legal necessity. Balia had executed a Will dated 16.05.1996, in favour of the parties. He is stated to have executed a Tamlik Nama dated 12.12.2003, without any legal necessity. The defendants started interfering with the possession of the plaintiff based on Tamlik Nama. He was requested not to do so, but in vain;hence, the suit was filed to seek the relief mention.ed above.

2. The suit was opposed by filing a written statement, taking preliminary objections regarding flack of maintainability and cause of action, the suit not being properly valued for the purpose of Court fee and jurisdiction, the plaintiff being barred by his act and acquiescence from filing the suit and the Will dated 16.05.1996 having been cancelled by Sh. Balia, vide cancellation deed dated 09.08.1999. The contents of the plaint were denied on merits. It was denied that the nature of the suit land was ancestral in the hand of Balia or that parties are governed by agricultural customs prevalent in the area. It was asserted that the plaintiff was working in the Punjab State Electricity Board in Pathankot. He constructed a house on the land jointly owned and possessed by the parties and is residing with his family in the house. The defendant was looking after by Balia. He got Balia treated at Nagrota and Kangra. Balia executed a Tamlik Nama on 12.12.2003, in favour of the defendant. The defendant has become the owner in possession of the suit land by virtue of Tamlik Nama.

The plaintiff has no right over the suit land. Hence, it was prayed that the suit be dismissed.

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

4. Learned Trial Court the following issues on 6.11.2006.

1. Whether the plaintiff has entitled to Decree for declaration as alleged? OPP.

2. Whether the rplaintiff is entitled to decree for permanent prohibitory injunction as consequential relief as prayed for OPP

3. Whether Will dt. 16.05.1996 and Tamlknama dt.12.12.2003 are the result of fraud, misrepresentation, and undue information, if so its effect, as alleged? OPP