SURAIN SINGH Vs. SHRIMATI BALWANT KAUR

JUDGEMENT

(1.) This appeal must be allowed as the Courts below appear to have greatly erred in throwing out the suit for possession on the ground that it should have been for declaration also with regard to the validity of a Will.

(2.) The position shortly was that Khushal Singh was the owner of certain immovable property consisting of mortgagee rights in lands also ownership rights and was in possession thereof. It was alleged in the plaint that he died on 24th August 1961 without leaving any issue and a wife. The suit out of which the appeal has arisen was filed by Surain Singh, a brother of Khushal Singh, on the ground that he was the sole heir. According to him, Balwant Kaur respondent, who is the daughter-in-law of Pal Singh deceased, another brother of Khushal Singh, had taken possession of certain land which was on mortgage with possession with the deceased.

(3.) On an objection having been raised about the maintainability of the suit for possession without any relief for declaration in respect of the Will, the trial Court dismissed the suit. On appeal, Shri Udham Singh, District Judge, who was expected to understand the legal position better than the trial Judge who was only Additional Subordinate Judge 3rd Class, has affirmed that 'judgment. This is what he says -