DARSHAN SINGH Vs. JAGRAJ SINGH

JUDGEMENT

(1.) THIS regular second appeal has been filed against the judgments and decrees passed by the learned courts below dismissing the suit filed by the plaintiff-appellant seeking declaration to the effect that the plaintiff-appellant was owner to the extent of 1/8th share in the suit land measuring 51 Bighas 5 Biswas comprised in Khewat No. 23 Khatauni Nos. 83 to 87 situated in village Mithewal, Tehsil Malerkotla. Relief of joint possession to the extent of 1/8th share in the land fully described in the head note (A) of the plaint was also claimed. It was also prayed that mandate for permanent prohibitory injunction be issued against defendants No.1 to 5 from alienating by way of sale, mortgage or in any other manner the suit land fully described in head-note (A) to any person.

(2.) IN the suit the plaintiff had claimed 1/8th share in the property claiming it to be co-parcenary in the hands of Niranjan Singh being Karta thereof. However, this plea of the plaintiff that the property was co-parcenary in the hands of Niranjan Singh has been rejected by both the courts below. The finding of fact is not open to challenge as no evidence was produced by the plaintiff to prove co-parcenary nature of the property. However, the plaintiff-appellant maintained that after the death of Niranjan Singh he was entitled to inherit the suit land being son of Niranjan Singh.

(3.) LEARNED courts below held that the Will dated 12.2.1981 stood proved. Learned courts below also came to the conclusion on appreciation of evidence that collusive decree was not fraudulently obtained and is, therefore, not open to challenge. However, learned lower appellate court rejected the collusive decree for want of registration, but dismissed the suit of the plaintiff by holding that under Will dated 12.2.1981 land stood bequeathed to defendant-respondents and therefore, plaintiff has no right to claim 1/8th share in the property on the basis of inheritance. Though finding of the learned lower appellate court that the collusive decree was required to be registered is also prima facie not correct, however, there is no necessity to go into the details as the learned lower appellate court has rightly held that the plaintiff would not succeed even if the collusive decree is set aside as the property was to be inherited under the Will dated 12.2.1981.