RAJ KUMAR Vs. HARI CHAND

JUDGEMENT

(1.) This regular second appeal by plaintiffs is directed against the judgment and decree dated 22.02.1985 passed by learned Additional District Judge, Sirsa, whereby the judgment and decree dated 23.07.1983 passed by learned Sub Judge IIIrd Class, Sirsa, has been set aside and the suit for possession filed by the plaintiffs has been dismissed. For convenience sake, reference to parties is being made as per their status in the civil suit.

(2.) The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for possession of the suit land fully described in the headnote of the plaint on the basis of 'will' dated 02.09.1975 alleged to have been executed by Jhangi Ram son of Ganesh Mai, grandfather of plaintiffs. It is averred in the plaint that Jhangi Ram was owner of land measuring 157 kanals 10 marlas fully described in the headnote of the plaint and jamabandi for the year 1977-78 situated in the revenue limits of village Talwara Khurd, Tehsil and District Sirsa. Jhangi Ram died on 25.11.1981. Plaintiffs are the grandsons, defendants No. 1 and 2 are the sons and defendants No. 3 to 5 are the daughters of Jhangi Ram deceased. Case of the plaintiffs is that Jhangi Ram had executed a registered 'will' dated 02.09.1975 in favour of the plaintiffs. It is alleged that after the death of Jhangi Ram, defendants in connivance with revenue authorities and without any notice to plaintiffs got a mutation entered and sanctioned in their name and mutation No. 1882 dated 15.01.1982 is null and void and plaintiffs are entitled to succeed to the property as per 'will' dated 02.09.1975.

(3.) Upon notice, defendants No. 1, 4, 5, 7 and 8 appeared and contested the suit whereas other defendants were proceeded against ex parte. Defendants filed written statement alleging that Jhangi Ram deceased never executed 'will' in question and if any 'will' is executed same is the result of fraud and misrepresentation and also that the 'will' in question is fictitious and forged document. Defendants are not bound by the 'will'. Jhangi Ram at the time of execution of alleged 'will' was of old age, deaf and dumb and hence was not in a position to understand as to what is right and what is wrong. As such plaintiffs are not entitled to succeed to the properly on the basis of 'will' in question. It was further alleged-that Jhangi Ram had no right to execute the 'will' as the property in his hands was ancestral coparcenary property. Besides this, various preliminary objections were also raised.