RAM SARAN Vs. DEEP KUMAR

JUDGEMENT

(1.) A dis-satisfied plaintiff-appellant has filed the present Regular Second Appeal assailing the judgments and decrees dated 16.10.1996 and 9.11.1998 passed by Civil Judge (Junior Division), Jagadhri (hereinafter described as `the trial Court') and Additional District Judge, Jagadhri (hereinafter referred to as `the lower Appellate Court'), respectively. A suit for declaration with consequential relief of permanent injunction was instituted by the appellant broadly on the averments that he and the respondents were descendants from a common ancestor, namely, Jeewana, who had five sons, i.e., Chauhal, Lakhu, Nawaja, Kabaj and Malji. All the five have since expired. Chhaju (respondent No. 3, who has since expired and is now represented by his legal representatives) is the son of Chauhal, whereas the appellant is the son of Surta son of Lakhu. Nawaja died leaving behind son-Suba. Smt. Multani (respondent No. 2) is the daughter of Nawaja and sister of said Suba. Kabaj left behind son-Rulia (respondent No. 4).

(2.) In question is the estate of Suba. According to the appellant, he and the respondents are Gujjars by caste and the main source of their livelihood is agriculture and they are governed by customary law prevailing in the States of Punjab and Haryana in the matter of alienation of the ancestral property. It was averred that the suit land is ancestral and the estate of Suba, who died on 16.11.1988 intestate leaving behind no issue, was liable to be succeeded by the appellant and respondent Nos. 2 to 4 being his only legal heirs. However, respondent No. 4 with an ulterior motive forged a Will allegedly having been executed by Suba in favour of respondent No. 1-Deep Kumar, ( minor son of respondent No. 4) and laid a claim to the entire estate of deceased-Suba. It was alleged that Suba had not executed the alleged Will out of his own free volition being of unsound mind and a fraud was played upon him.

(3.) In their written statement, respondent Nos. 1, 2 and 4 admitted the factum of the parties being Gujjars by caste, but rest of the averments made by the appellant were denied. It was contended that Suba, out of love and affection and with his free will, executed a valid registered Will in favour of respondent No. 1. It was on the basis of this Will that respondent no.1 had succeeded to the share of Suba. It was further contended that all the co-sharers are in separate possession of their shares of the suit property for the last 50 years and that the appellant is not in possession of any portion thereof.