BUTA SINGH Vs. KABAL SINGH

JUDGEMENT

(1.) Plaintiffs-appellants are in Regular Second Appeal against concurrent finding of fact arrived at by the Courts below while dismissing a suit for declaration that they are owners in possession of the property.

(2.) Dispute is with regard to inheritance of property left by late Sh. Desa Singh, common ancestor of the parties. Plaintiffs claim the property on the basis of natural succession and have also alleged that the Will set up by the defendants dated 31.1.1995, allegedly executed by Desa Singh, is forged and fabricated. On appreciation of evidence the Trial Court dismissed the suit. Learned Trial Court held that the Will of Desa Singh Ex. D-l dated 31.1.1995 has been proved, although no attesting witness has been examined in the Court to prove the Will. The Trial Court noticed that Daljit Singh, attesting witness of the Will had appeared in a suit titled as 'Kabal Singh vs. Gram Panchayat'. The Trial Court relied upon the aforesaid statement. The suit was also held to be not maintainable as previous suit was dismissed under Order 17 Rule 3 CPC.

(3.) Learned First Appellate Court on re-appreciation of the evidence held that the Will has not been proved in accordance with Section 68 of the Indian Evidence Act, 1872. However, the First Appellate Court found that the present suit filed by the plaintiff is barred as previous suit filed by them was for the same relief, with respect to the same property by the plaintiffs, was dismissed by the Court on 6.2.1998 under Order 17 Rule 3 C.P.C.