MANGAL SINGH Vs. KARTARA

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by the plaintiffs against the judgment and decree dated 16.11.1988, passed by the learned Additional District Judge, whereby the appeal, filed by the defendants, was accepted, the judgment and decree of the trial Court, were set aside and the suit of the plaintiffs was dismissed. The plaintiffs had filed a suit for declaration to the effect that the plaintiffs were the owners in joint possession of the land detailed in the heading of the plaint and were entitled to continue in possession thereof till they were dispossessed. It was alleged that Joga Singh was the owner of 1/14th share in 95 kanals 19 marlas of land and that Joga Singh was unmarried and he lived with the plaintiffs who rendered him all kinds of service and provided him food, etc. and the plaintiffs cultivated his share of land during his life time. It was alleged that the defendants (who are the real brothers and sisters of Joga Singh) had very little to do with Joga Singh. It was alleged that on 6.5.1979, Joga Singh had executed a Will in favour of the plaintiffs, for the services rendered by them. It was alleged that after the death of Joga Singh, the plaintiffs came into possession of all the movable and immovable assets of Joga Singh, including the share of Joga Singh in the suit land. It was alleged that Revenue Officers had illegally not given effect to the aforesaid Will dated 6.5.1979 in favour of the plaintiffs. Accordingly, the plaintiffs claimed their ownership over the suit land on the basis of the aforesaid Will allegedly executed by Joga Singh in their favour. In the written statement, filed by the defendants, it was admitted that Joga Singh was unmarried. However, it was denied that Joga Singh had executed any Will dated 6.5.1979 in favour of the plaintiffs. It was alleged that the alleged Will set up by the plaintiffs, was forged and fabricated. It was alleged that the plaintiffs were strangers to Joga Singh, deceased, and had never served Joga Singh nor cultivated his share of land. It was alleged that the plaintiffs had no right on any part of the suit land nor they were in possession thereof. It was alleged that in fact the land in dispute was under physical control and management of the answering defendants, who were its lawful and absolute owners. It was alleged that the Revenue Officers had rightly not given effect to the alleged Will as the answering defendants were the owners of the suit land after the death of Joga Singh.

(2.) AFTER hearing both the sides, the learned trial Court decreed the suit of the plaintiffs. However, the appeal, filed by the defendants, was accepted by the learned Additional District Judge, the judgment and decree of the trial Court were set aside and the suit of the plaintiffs was dismissed holding that the plaintiffs had failed to prove due execution of the Will in question which was shrouded with suspicious circumstances. Aggrieved against the judgment and decree, passed by the learned Additional District Judge, the plaintiffs filed the present Second Appeal in this Court.

(3.) LEARNED counsel for the plaintiff-appellants submitted before me that the learned Additional District Judge erred in law in holding that the Will was shrouded with suspicious circumstances. It was submitted that as per the ration card of the plaintiffs, Joga Singh, deceased, was living with the plaintiffs. It was further submitted that since the defendants were not serving Joga Singh, he had executed a Will in favour of the plaintiffs, who are his distant relations. It was further submitted that nothing has come on the record to discard the testimony of two attesting witnesses and the scribe. However, I find no force in these submissions of the learned counsel for the plaintiff-appellants. In my opinion, the learned Additional District Judge had given cogent and convincing reasons for discarding the Will, Ex. PW 5/1, allegedly executed by Joga Singh, deceased, in favour of the plaintiffs. First of all, it may be made clear that at no point of time, the plaintiffs had claimed themselves to be related to Joga Singh in any manner whatsoever. The submission of the learned counsel for the plaintiff-appellants that the plaintiffs are distantly related to Joga Singh, is not borne out from the record. In the plaint, the plaintiffs had nowhere alleged that they are in any manner related to Joga Singh. In fact it was simply mentioned in the plaint that Joga Singh was owner of 1/14th share in the land measuring 95 kanals 19 marlas and that Joga Singh was unmarried and he lived with the plaintiffs who rendered him all kinds of service and provided him with food, clothing, etc., and that Joga Singh had executed Will dated 6.5.1979 in their favour. It was nowhere alleged that the plaintiffs were in any way related to Joga Singh. In the written statement, the defendants categorically stated that the plaintiffs were strangers to Joga Singh, deceased, and his other relatives. In spite of this assertion by the defendants that the plaintiffs were strangers to Joga Singh, the plaintiffs nowhere alleged in the replication about their being distantly related to Joga Singh. Even in the replication, it was simply alleged that Joga Singh was living and was being served by the plaintiffs and they cultivated his land during his life time and that Joga Singh was not having cordial relations with the defendants. However, it was nowhere alleged that the plaintiffs were distantly related to Joga Singh. When PW2, Mangal Singh, plaintiff appeared in the witness box, he simply stated that Joga Singh was known to him and was residing with him since his childhood. Even during evidence, he had nowhere stated that Joga Singh was in any way related to him. It was only during cross-examination that he stated that Joga Singh was his Uncle. However, it was nowhere mentioned as to in what manner he was related to him. Thus, it would be clear that the plaintiffs were in no way related to Joga Singh, not even distantly.