BHAGWAN SINGH Vs. BAHADUR SINGH

JUDGEMENT

(1.) This is defendant's second regular appeal against the judgment and decree of the Additional District Judge, Gurdaspur, whereby the appeal, filed by the plaintiffs was accepted, thus decreeing the suit of the plaintiffs.

(2.) The plaintiffs filed a suit for possession of land measuring 75 kanals 13 marlas, as per detail given in the plaint situated in village Chohan and for two vacant pieces of land described in the heading of the plaint. The plaintiffs claimed themselves to be owners of the land on the basis of Will executed by the erstwhile owner Smt. Dhani widow of Shallo who died on 2.5.1973. It is further the case of the plaintiffs that a dispute arose between the plaintiffs and the defendants with regard to the inheritance of above mentioned Smt. Dhani. Ultimately, the mutation was sanctioned in favour of the plaintiff's on the basis of registered Will dated 21.8.1975. The plaintiffs further averred that earlier the defendant filed a suit for declaration to the effect that he was owner in possession of the suit land being the nearest relative of Smt. Dhani. The defendant in this suit pleaded that earlier he was in possession of the suit land as a tenant at Will. This suit of the defendant was dismissed by the Sub-Judge Ist class on 22.7.1976 and an appeal therefrom was dismissed by the Additional District Judge, Gurdaspur, on 7.4.1977. The present suit has, in fact, been filed on the basis of the judgment and decree dated 7.4.1977 (Exhibit P-1) thus claiming possession of the suit land.

(3.) The defendant put in appearance, filed written statement and controverted the various averments made in the plaint. The defendant specifically averred that he had been in cultivating possession of the suit land as tenant of deceased Smt. Dhani and on her death had been cultivating it as tenant of the plaintiff is as well and thus contend that the suit in the present form is not maintainable. The defendant, however, admitted that he challenged the execution of the Will in the civil Court but was unsuccessful. The defendant, however, further averred that the plaintiff had earlier filed a suit in which they had agreed that the defendant will not be dispossessed without due course of law and on the basis of this statement the suit of the plaintiffs was dismissed. The defendant further pleaded that earlier the plaintiffs filed an application under section 9 of the Punjab Security of Land Tenures Act, 1953, in the Court of Assistant Collector Ist Grade, Pathankot, for his ejectment the claiming defendant to be their tenant.