PARMOD KUMAR Vs. JOGINDER SINGH

JUDGEMENT

(1.) This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for joint possession of suit land with consequential relief of declaration to the effect that the Will dated 17.12.1982 and mutation No. 340 sanctioned on the basis of the aforesaid Will were null and void, was dismissed.

(2.) As per the pleadings, Sadhu Ram and Puran Singh, sons of Deva Singh were recorded as owners of land measuring 65 manals 8 marlas as detailed in the suit. Sadhu Ram died issueless on 24.6.1991. Puran Singh (father of Joginder Singh-defendant No. 1 and Mohinder Singh Predecessor-in-interest of plaintiff-appellants), was living with Mohinder Singh during his lifetime. After Mohinder Singh's death, the plaintiffs were providing all necessities of life to Puran Singh and in a family settlement, he suffered a decree in Civil Suit No. 764 of 1993 titled as Parmod Kumar v. Puran Singh and plaintiff No. 1 became owner in possession of the land earlier owned and possessed by Puran Singh. After Mohinder Singh's death, plaintiff No. 1 became exclusive owner in possession of land measuring 32 kanals 14 marlas i.e half share of the suit land which was situated towards western side of the land of Joginder Singh. Land measuring 32 kanals 14 marlas was possessed by Jognder Singh whereas he was legally entitled to retain land measuring 16 kanals 7 marlas being half share of land measuring 32 kanals 14 marlas. Joginder Singh in collusion with Revenue Authorities and on the basis of a false and fabricated Will dated 17.12.1982 allegedly executed by Sadhu Ram got mutation No. 340 sanctioned in favour of defendants No. 2 and 3. The aforesaid Will was illegal null and void and was liable to be set aside as Sadhu Ram never put his thumb impressions on the Will in the presence of witnesses. The property in the hands of Sadhu Ram was ancestral and he was not competent to Will away the same. The plaintiffs being LRs of Sadhu Ram were entitled to inherit the same to the extent of half share. Possession of the defendants on land measuring 16 kanals 7 marlas was illegal and unauthorised on the basis of false and fabricated documents. Revenue record which was wrong was not binding on the rights of the plaintiffs. The defendants were requested to hand over the vacant possession of the suit land but in vain. Hence, this suit.

(3.) Upon notice, the suit was contested by the defendants. They filed joint written statement raising various preliminary objections. On merits, the defendants submitted that Sadhu Ram died issueless and executed a valid Will in favour of defendants No. 2 and 3 voluntarily while in full senses. The Will was scribed on 27.9.1982 and was registered on 17.12.1982. Puran Singh was residing with the plaintiffs as well as defendants alternatively. There was no family settlement as alleged. Defendant No. 1 had already obtained a decree for permanent injunction against Puran Singh from alienating the suit property. Defendant-Joginder Singh filed an application for his impleadment in the aforesaid suit but the plaintiffs fraudulently filed Suit No. 764 of 1993 without disclosing the factum of pendency of earlier suit and obtained a collusive decree which was challenged by defendant No. 1 and was pending adjudication. Mutation of the land was rightly attested in favour of defendants No. 2 and 3. The will was genuine and no fraud was played on Sadhu Ram. The revenue entries in favour of the defendants were also correct. All other allegations of the plaintiffs were denied and dismissal of the suit was prayed.