DAYA RAM Vs. KANWAR PAL

JUDGEMENT

(1.) This appeal, is directed, against the judgment and decree, dated 22.10.02, rendered by the Court of Civil Judge (Junior Division), Karnal, vide which, it dismissed the suits of the plaintiffs, and, the judgment and decree, dated 14.09.04, rendered by the Additional District Judge (Fast Track Court), Karnal, vide which, it dismissed the appeals.

(2.) The facts, in brief, are that, Surji Devi (since deceased), was the exclusive owner of the property, in dispute. It was stated that Surji Devi, became widow, in her early age. She died issueless. It was further stated that she suffered a consent decree dated 15.01.86, in favour of the plaintiffs and Kanwar Pal, defendant Nos. 1, in respect of her entire property, but subsequently, she filed a Civil Suit, for setting aside of the same, in which, the parties arrived at a compromise, as a result whereof, the same was dismissed as withdrawn. It was further stated that Surji Devi (since deceased), again filed a Civil Suit, challenging the consent decree dated 15.01.86 on the ground of fraud and misrepresentation, which was decreed, vide judgment dated 15.06.95, by the Court of the then Additional Civil Judge (Senior Division), Karnal. It was further stated that, an appeal, preferred against the judgment and decree dated 15.06.95, was dismissed, by the Court of the Additional District Judge, Karnal, vide judgment dated 28.07.97. It was further stated that after the death of Surji Devi, Kanwar Pal, defendant No. 1, started claiming that the deceased, had executed a registered Will dated 30.11.93, bequeathing her entire property, in his favour. It was further stated that no such Will, was ever executed by the deceased, in favour of defendant No. 1, and, as such, the one set up by him was illegal, null and void. It was further stated that, Surji Devi (since deceased), never resided with defendant No. 1, during heer life time, and, on the other hand, she was looked after by the plaintiff. It was further stated that, at the time of the alleged execution of the Will, Surji Devi (now deceased), was not the owner of the property, in dispute. It was further stated that, the Will, in question, was obtained in an illegal and fraudulent manner. It was further stated that defendant No. 1, was many a time asked to refrain from his nefarious designs, an treat the Will dated 30.11.93, as illegal, null and void, but to no avail. Ultimately, suit for declaration and permanent injunction, was filed.

(3.) Kanwar Pal, defendant No. 1, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the suit was bad for mis-joinder and non joinder of necessary parties. It was further pleaded that, no cause of action, accrued to the plaintiffs, to file the suit. It was admitted that Surji Devi (since deceased), was the owner of the property, in dispute. It was stated that Surji Devi, was an illiterate rustic villager. It was further stated that she became widow, at the age of 12 years. It was further stated that she died issueless. It was denied that Surji Devi (since deceased), was ever looked after by the plaintiffs. It was further denied, that the plaintiff, were the owners of the property, in dispute. It was further denied that the plaintiffs, being the successors of the deceased, were entitled to get the suit property. It was further stated that, defendant No. 1, was shown as one of the plaintiffs, in the Civil Suit, in which, the consent decree, was allegedly suffered, by Surji Devi (since deceased), when he was minor, just with a view to gain something from her. It was further stated that Surji Devi (since deceased), executed a legal and valid registered Will dated 30.11.93, in favour of defendant No. 1. It was further stated that, after the death of his mother, defendant No. 1, was brought up by Surji Devi (since deceased), and since then, he had been living with her. It was further stated that Surji Devi (since deceased), also performed the marriage of defendant No. 1. It was further denied that the property, in dispute, was not in the name of Surji Devi (since deceased), at the time of execution of the Will dated 30.11.93, in favour of defendant No. 1. It was further stated that, there was no need of mentioning the fact of litigation, in respect of the suit land, in the Will, in question. The remaining averments, were denied, being wrong.