DALIP KAUR Vs. JARNAIL SINGH

JUDGEMENT

(1.) This is plaintiffs Second Appeal whose suit for possession has been dismissed by the Courts below.

(2.) The plaintiffs filed suit for possession of 6/16th share of the suit land claiming that defendant Nos. 2 to 4 had 1/4th share, defendant Nos. 1 to 7 had 1/4th share; in the suit land, whereas 1/2 share was held by Sohan Singh, maternal grand-father of the plaintiffs and defendant No. 1 Jarnail Singh, therein. Sohan Singh died issueless and a bachelor. Thus, the legal heirs of deceased Sohan Singh in equal share, but the defendant Jarnail Singh had entered into illegal possession of the plaintiffs, and defendant Nos. 2 to 7 claim that they have purchased the share of Sohan Singh from Jarnail Singh, defendant. According to the plaintiffs Jarnail Singh had no legal right to sell the land in excess of his own share. The suit was contested by Jarnail Singh on the ground that the deceased Sohan Singh had executed a valid will in his favour and therefore, he was competent to sell this land to the remaining defendants. Defendant Nos. 2 to 7 claimed themselves to be the bona fide purchasers without notice. The trial Court found that there was a valid will executed by Sohan Singh in favour of Jarnail Singh. It was further found that defendant Nos. 2 to 7 were the bona fide purchasers for value, without notice, from Jarnail Singh. In view of these findings, the suit was dismissed. In appeal, the learned Senior Sub-Judge with Enhanced Appellate Powers affirmed the said findings of the trial Court, and, thus, maintained the decree, dismissing the suit. Dissatisfied with the same, the plaintiffs have preferred this Second Appeal.

(3.) Learned counsel for the appellants contended that the said will was surrounded with suspicious circumstances. The original will was never produced at any stage as it never existed. The Courts below have erred by allowing the secondary evidence to be led to prove the original will. It was further contended that there was no occasion for the lower appellate Court to allow additional evidence U.O. 41, Rule 27, Civil Procedure Code, at the appellate stage.