DHARAMBIR Vs. BRAHAM PARKASH

JUDGEMENT

(1.) Present application under Sec. 151 CPC is filed seeking condonation of delay of 423 days in re-filing the appeal.

(2.) The appellant shall hereinafter be referred to as the 'plaintiff; and the respondents as the 'defendants.

(3.) Brief facts of the case of the plaintiff are that the plaintiff and the defendants No.1 to 3 are brothers and defendants No.4 and 5 are their sisters. Their father namely Siri Chand was co-owner in possession of agriculture land bearing khewat khata No.111/119 rectangle No.5 total measuring 23 kanal 9 marla to the extent of 1/6th share; khewat/khata No.110/118 rectangle No.6 measuring 9 kanal 12 marla to the extent of 1/6th share; khewat/khata No.107/115 rectangle No.5 and 6 measuring 31 kanal 12 marla to the extent of 1/6 share situated within the revenue estate of village Mewka Tehsil and District Gurgaon. The said land was self acquired property of the father of parties to the suit as he had purchased the same on his own. The father of the parties to the suit executed a Will bearing no. 328 dtd. 4/8/2009, registered in the office of Sub Registrar, Gurgaon. The defendant no. 2 and son of defendant no.1 namely Rajesh kumar were the witness of the same. At the time testator was 85 years of age. On 18/8/2010, father of the plaintiff and defendants died and mutation no. 1531 was sanctioned on the basis of aforesaid Will vide rapat Rojnamcha no. 829 dtd. 31/8/2010. It is alleged that defendants no.1 to 3 had evil eyes on the property therefore, they got cancelled the aforesaid Will vide document bearing no. 833 dtd. 21/1/2010, registered in the office of Sub Registrar, Gurgaon despite the fact that at that time the executants was not in position to execute the document. It is alleged that aforesaid document was the result of undue advantage. On the basis of document of cancellation of Will, mutation no. 1532 dtd. 15/10/2010 was sanctioned and mutation no. 1531 was cancelled. It is also pleaded that under a conspiracy defendants no.1 to 3 had also got executed release deed in their favor. It is alleged that the document bearing no. 33056 dtd. 25/2/2011, was registered in violation of provisions of Registration Act, Indian Stamp Act and notification bearing memo no. 619-STR-1-2000-Special Chandigarh dtd. 3/2/2000, issued by Haryana Government because property in dispute was not the ancestral property rather it was self acquired property. The plaintiff requested defendants time and again not to assert their right on the basis of impugned documents but they did not pay any heed. Hence, the present suit.