Romesh Verma, Judge (oral)

1. The present appeal arises out of the order dated 16.08.2018, as passed by learned Additional District Judge-II, Kangra at Dharamshala, District Kangra, H.P., whereby an application under Section 5 of the Limitation Act, for condonation of delay in filing the appeal against the judgment and decree dated 19.02.2014, as passed by learned Civil Judge (Jr. Div.), Dehra, Distt. Kangra, H.P., whereby the suit of the plaintiff was decreed, has been dismissed being without any merit.

2. The brief facts of the case are that the plaintiff/ respondent filed a suit for declaration before learned Civil Judge (Jr.Division), Dehra, District kangra, H.P. on 27.04.2007. As per the averments as made in the plaint, Jugni Devi, original plaintiff, is the owner in possession of suit land and she is the exclusive owner of a cow shed as shown in the site plan comprised in Khata No. 39, Khatauni No. 74, Khasra No. 196 area measuring 0-16-98 hectares, situated in Mohal Badhed, Mauja Mahadev, Tehsil Khundian, District kangra, H.P. It has been stated that the husband of the plaintiff Sh. Roshan Lal was owner in possession of land in suit. The plaintiff being wife has succeeded to him as owner in possession after the death of Roshan Lal, (which took place on 12.9.1995). The defendants are not related to plaintiff or her husband are clever persons. The defendants duped Late Sh. Roshan Lal, when he was seriously ill by bringing medicines and even once accompanied him to Khundian, for treatment.

3. As per plaintiff, late Sh. Roshan Lal had not executed Will dated 24.8.1995 as claimed by defendants as in those days he was seriously ill and bed ridden. There was no occasion for Late Sh. Roshan Lal to execute a Will in favour of defendants. The defendants on the basis of Will got attested mutation No. 26 on 11.01.1996 in favour of plaintiff and defendants, without informing the plaintiff. The said mutation is wrong, illegal, null and void and not binding on the rights of the plaintiff. The defendants are threatening to cut, fell and remove the trees situated over the land and have also threatened to cut the crop grown forcibly. Therefore, it was prayed that suit be decreed, thereby declaring the plaintiff to be the owner in possession of land in suit.

4. The suit was contested by petitioners/defendants by filing written statement, in which preliminary objections with regard to maintainability, cause of action, limitation etc. have been taken. All the averments made in the plaint were refuted and denied.

5. The learned trial Court framed issues on 13.09.2007, in the following manner:

1. Whether plaintiff is exclusive owner in possession of suit land i.e. Khata No.23, Khatauni No.33, Khasra Nos.39, 42, 70, 74, 76, 112, 113, 115, 125, 131, 133, 135, 137,139, 140, 152, 172, 180, 185, 282, 286, 287, 292, 293, 333, Kitam 25 area 1-08-25 hectares, situated in Mohal Badhed, Mauza Mahadev, Tehsil Khundian, Distt. Kangra as prayed for ? OPP

2. Whether plaintiff is also exclusive owner of house IJBDCA and cowshed EFGH as shown in site plan and comprised in Khata No. 39, Khatauni No.74, Khasra No. 196 area 0-16-98 hectares, as alleged? OPP

3. Whether the entry of defendants as co owners is wrong on the basis of mutation no. 26 passed on 11.1996 is false, frivolous and null and void and not executed by Late Sh. Roshan Lal? OPP.

4. Whether plaintiff is entitled for permanent injunction as prayed for? OPP.

5. Whether plaintiff is entitled for permanent injunction as prayed for? OPP.

6. Whether plaintiff is entitled for mandatory injunction as payed for? OPP.

7. Whether the suit is time barred? OPD.

8. Whether plaintiff is estopped from filing the suit? OPD.

9. Whether suit is false and frivolous and bad for supply of better particulars as alleged? OPD.

10. Whether suit is not maintainable? OPD.

11. Relief.

6. The learned trial Court directed the parties to adduce evidence in support of their contentions and after concluding the evidence the learn