SUKHDEV RAM Vs. TIRATH RAM AND OTHERS

JUDGEMENT

(1.) THIS is a regular second appeal brought by defendant, Sukhdev Ram against the judgments and decrees passed by learned Civil Judge [Junior Division], Bathinda dated 1.3.2011 and learned Additional District Judge [Fast Track Court] Bathinda dated 18.9.2012. Tirath Ram, the plaintiff filed a suit for declaration that he is owner of 13/16 share in the suit land as per Will dated 4.11.2003 executed by Roop Ram. He also sought the relief of permanent injunction restraining the defendants from alienating the share of the plaintiff in the suit land which fell to him under the Will in question.

(2.) THE plaintiff has claimed that Roop Ram, father of the plaintiff and defendant No. 1 alongwith his brother Kishore Chand had been owner of the suit property. Defendant No. 2 is the son of defendant No. 1 while defendant No. 3 is son of the plaintiff and defendant No. 4 is the grandson of defendant No. 1. Long time back, family settlement was arrived at between Roop Ram and Kishore Chand with regard to the suit property. Kishore Chand has got 6 kanals land more than his share and land measuring 151 kanals fell to the share of said Roop Ram. Roop Ram in his life time effected a family settlement under which land measuring 29 kanals was given to defendant No. 1. On an earlier occasion, defendant No. 1 executed a registered sale deed in favour of defendant No. 6. Roop Ram had also sold land in favour of defendants No. 2 and 3. Mutations were sanctioned on the basis of those sale deeds. During his life time, Roop Ram executed a Will dated 4.11.2003 whereby he bequeathed 13/16 share of his estate in favour of the plaintiff, 2/16 share in favour of defendant No. 1 and 1/16 share in favour of defendant No. 2. Roop Ram died on 6.12.2003. The plaintiff approached the revenue officials for sanction of mutation, but the same was contested by the defendants and was rejected by Assistant Collector Ist Grade by holding that signatures of the deceased were taken on blank paper. The Assistant Collector Ist Grade passed the said order without taking any evidence and without giving hearing to the plaintiff. Without waiting for the period prescribed for filing appeal, defendant No. 1 executed a registered mortgage deed with respect to land measuring 24 kanals in favour of defendant No. 5. It is claimed that since under the Will, the land fell to the share of plaintiff, the mortgage deed was not valid. He has claimed that he is in actual physical possession of the land measuring 65 kanals 14 marlas. Defendants No. 1, and 5 to 8 are threatening to alienate the share of the plaintiff taking the benefit of wrong entries in the revenue record.

(3.) ON the pleadings of the parties, the following issues were framed by learned trial court.