Document Fragment View
Fragment Information
Showing contexts for: mutation order in Sh. Sukhbir Singh vs Smt. Bhagyawanti & Others on 20 January, 2011Matching Fragments
"i. That a decree of declaration to the effect that the will dated 6.11.96 executed by the deceased Shri Uday Singh in favour of the defendants be declared as null and void and be cancelled and the consequential order of mutation dated 13.1.98 based on the above will sanctioned by the Tehsildar vide Mutation order no.3025 in favour of the defendants and plaintiffs be also declared void.
b) a decree of declaration to the effect that the sale deed dated 9.11.95 executed by the defendant no.15 in favour of the defendant no.6 purported to have been sold land situated in vill.
e) The costs of the suit and or any other order or direction or relief be also passed in favour of the plaintiff and against the defendants."
5. The cause of action in the suit is for declaration of the Will dated 6.11.1996 of late Sh. Udai Singh to be null and void for the reason that Udai Singh was not the sole owner of the land and the lands were in fact ancestral and thus were of the Hindu Undivided Family. One of the reliefs as prayed in the plaint is for cancellation of the mutation order of the authorities dated 13.1.1998 on the basis of which lands in village Barwala have been mutated in different shares as per the Will dated 6.11.1996 of late Sh. Udai Singh. Another part of cause of action in the plaint was that it was alleged that respondent No.15/defendant No.15 (who is the wife of one of the son namely Sh. Darshan Singh/respondent No.6/defendant No.6) forged a power of attorney of late Sh. Udai Singh in her favour dated 13.3.1993 and acting on the said power of attorney respondent No.15/defendant No.15 is alleged to have transferred the lands in village Alipur to her husband respondent No.6/defendant No.6 under a sale deed dated 1.11.1995 and pursuant to the sale deed, these lands of village Alipur being 21 Bigha and 2 Biswas have been mutated in the name of respondent No.6/defendant No.6.
I may note that during the pendency of the suit the appellant/plaintiff gave up his relief of partition on 18.1.2000 and which has been so noted in the impugned order.
6. The aforesaid facts make it clear that the appellant claims ownership rights with respect to the lands in village Barwala and village Alipur, New Delhi. It is prayed in the plaint that the Will of late Sh. Udai Singh be declared as null and void as also the general power of attorney and the consequential sale deed executed by respondent No.15 in favour of respondent No.6 with respect to the lands in village Alipur. Challenge is also laid to the two mutation orders, one on the basis of will of Sh. Udai Singh and other on the basis of the sale deed executed by respondent No.15 in favour of respondent No.6. In sum and substance, the plaintiff seeks ownership rights in the subject lands. The declaration is therefore for ownership rights in the subject land by seeking quashing of the Will as also the mutation orders based on the sale deed and the Will.
8. Though it is not disputed on behalf of the appellant/plaintiff that the appellant/plaintiff is not in actual physical possession of the lands in village Barwala and village Alipur, what is contended by the learned counsel for the appellant is that once the properties are proved by him to be HUF properties, the other family members who are in possession of the properties are holding the same for and on behalf of the appellant/plaintiff and therefore he need not ask for the relief of possession. I am afraid the argument of the learned counsel for the appellant is misconceived because a coparcener and a co-owner will remain in possession for and on behalf of the other co-owners only till ouster is pleaded and proved. Here the ouster is admitted by the appellant/plaintiff himself because ouster means that the ownership rights of coparcener and co-owner are denied by the other coparceners/co-owners. The very fact that the appellant/plaintiff in his plaint has stated that the mutation of the lands in village Barwala have taken place in different shares in favour of the different family members pursuant to the Will dated 6.11.1996, therefore, admittedly ouster is complete as against the appellant/plaintiff with respect to those lands which have been mutated in the name of other family members. So far as the lands in village Alipur are concerned, once again, the ouster against the appellant/plaintiff is complete because the appellant/plaintiff admits that pursuant to the alleged illegal sale deed executed in favour of the respondent No.6/defendant No.6 on the basis of a forged power of attorney in favour of respondent No.15/defendant No.15, there is in fact taken place mutation order mutating these lands in village Alipur in the name of respondent No.6./defendant No.6. Once again therefore qua the land in village Alipur, the ouster of the appellant/plaintiff is an admitted fact.