SUBHASH CHANDER Vs. OM PARKASH AND ORS

JUDGEMENT

(1.) This second appeal has been preferred by Subhash Chander, plaintiff-appellant, and the other plaintiffs (Kailash Chand & Kulwant Rai, Respondents No. 15 and 16, respectively)who lost before the Trial Court as well as before the First Appellate Court. They are claiming succession to plot in dispute bearing No. 154 situated in Model Town, Adampur, Tehsil and District Hisar, on the basis of the Will dated 17.7.1985, purported to have been executed in their favour by the original owner, Banwari Lal, who was their grand farther. Plaintiffs pleaded in their plaint that this plot was purchased by Banwari Lal from the New Mandi Township Haryana, Chandigarh and during his life time he had been living with them and they had been serving him. As a reward thereof, this plot was given to them in the year 1985 itself in the presence of many persons and since then they are coming in physical possession thereof. Later on, they came to know that the deceased had executed a Will dated 17.7.1985 thereby bequeathing this plot in their favour. That Will was left by the deceased with his close relation, Mange Ram and they were intimated about that Will by said Mange Ram, vide letter dated 24.1.1995. On the basis of this Will and the oral declaration made in their favour by the deceased, they wanted to raise construction on that plot in the month of March, 1995, upon which the defendants came to the spot and claimed ownership on the basis of the Will executed in their favour by the deceased and prevented them from raising any construction. The same necessitated the filing of the suit for declaration and permanent injunction.

(2.) The suit was contested by defendants No. 2 to 4, who filed separate written statements. They contested the claim of the plaintiffs. They pleaded that Om Parkash-defendant No. 1, father of the plaintiffs, filed civil suit No. 726 of 1987 against his brother Khushi Ram and sister Bimla Devi as well as against Raj Kumar and Mahender sons of Khushi Ram. That suit was dismissed, vide judgment and decree dated 29.9.1999 passed by Sub Judge, Hisar. Defendant No. 1 filed appeal against that judgment and decree, which was dismissed by Additional District Judge, Hisar, vide judgment and decree dated 14.1.1995. He preferred second appeal against that judgment, which was dismissed in limine by this Court on 31.5.1995. When the plaintiffs' father failed to get the plot in dispute, in that litigation, they fabricated the story of execution of the Will. Their suit is not maintainable and is bad for mis-joinder and non-joinder of necessary parties. .

(3.) On the pleadings of the parties, following issues were framed by the learned Trial Court: