SANTOKH SINGH Vs. KAURO

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that the predecessor-in-interest of the plaintiff-appellant Jagir Singh @ Jagiru had succeeded to 1/3rd share of the suit land directly from his father Basant Singh and to that extent the land was ancestral in his hand. It is appropriate to mention that Jagir Singh @ Jagiru had other two brothers. The land left by them was held to be self- acquired property of Jagiru. Both the Courts below have refused to re-open the issue on the principle of res judicata on account of a judgment and decree dated 24.12.1979 Ex. P-7 and P-8 respectively passed by a Court of competent jurisdiction. Even the appellate Court has upheld that judgment and decree and the same is on record as Ex. P-9. The plaintiff-appellant is one of the sons of Jagir Singh @ Jagiru who had claimed right by birth in the whole of the property without limiting the same to 1/3rd share. The findings recorded in the earlier judgment and decree dated 24.12.1979 Ex. P-7 and P-8 respectively have also been held to be res judicata against the plaintiff-appellant where both the Wills allegedly executed by Jagiru were found to be forged. The argument that the plaintiff-appellant was merely a co-defendant in the earlier litigation has been rejected because the Will was set up against Jaspal Singh and Gurdip Singh, who had filed the earlier suit. It is appropriate to mention that Jaspal Singh and Gurdip Singh who are sons of plaintiff-appellant had derived their title from him and have pleaded (impleaded ?) him as one of the defendants. The aforementioned view is evident from a perusal of para 8 of the lower appellate Court which reads as under :-

(2.) MR . B.D. Sharma, learned counsel for the plaintiff-appellant has made an attempt to argue that the whole of the property in the hand of Jagir Singh @ Jagiru should be held to be ancestral property. He has referred to the pedigree table showing that the grandfather of plaintiff-appellant Basant Singh owned 109 kanals 12 marlas of land. He had three sons Jagiru, Waziru and Jiwa Singh. According to the learned counsel the share of other two sons in the hand of Jagiru their brother had to be considered as ancestral co-parcener property. He has also attacked the findings of the Courts below which have held that the issues raised by the plaintiff-appellant in the suit must be decided independently and cannot be hit by the principle of res judicatia on account of judgment and decree dated 24.12.1979 Ex. P-7 and P-8.

(3.) HAVING heard the learned counsel I am of the considered view that the only question which would require determination in this appeal is whether the judgment and decree passed by the Courts below giving 13/48 share to the plaintiff-appellant out of total land measuring 109 kanals 12 marlas is sustainable in the eyes of law by declining the application of principle of res judicata. The following pedigree table would be relevant to decide the controversy raised in the appeal:- It is evident that Basant Singh had three sons. The property to the extent of 1/3rd was inherited by Jagiru and was considered ancestral in his hand. The rest of the property belonging to this two brothers has not been considered as ancestral in the hands of Jagiru. The will dated 5.5.1972 has already been held to be forged in earlier litigation which culminated in the passing of the judgment and decree dated 24.12.1979, Ex. P-7 and P-8. That decree cannot be reopened on either of the two issues namely the nature of the property and the forged nature of the will. Therefore, the plaintiff-appellant who is one of the four children of Jagiru could claim has share from the 1/3rd share inherited by Jagiru. The findings of learned trial Court as accepted by learned lower appellate Court are as under :-