Judgment

Date of Judgment 22/01/2025 The civil first appeal has been filed by the defendant-

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, 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.

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. Re