WAZIR SINGH Vs. JOGINDER SINGH

JUDGEMENT

(1.) Briefly, the facts are that the land in question was owned by one Kapur Singh (wrongly mentioned as Kesar Singh) who left two sons Hira Singh and Attra. Attra had three sons, Kishna, Kaka and Arjan. Joginder Singh and Attra. Attra had three sons, Kishna, Kaka claim to have inherited his share on his death on 24.11.1966. Arjan brother of Kakr was in possession of 1/6th share on whose death in 1965, defendant No. 1 took illegal possession of the property of Arjan though his heir was Kaka who was to inherit the same. Possession was sought from the defendants. On their refusal suit for declaration was preferred by the plaintiffs on the ground that they were owners in possession of one-third share of land measuring 226 Kanals 6 Marlas situate in village Chajli, mentioned in the heading of the plaint, and for joint possession with respect to 37 Kanals 14 Marlas as stated in the plaint.

(2.) The defendants controverted the allegation. Locus standi of the plaintiffs to file the suit was challenged. The suit was said to be time barred. Form of the suit was challenged. It was stated that they were possessions of the suit land for the last more then twelve years, consequently in the suit was not maintainable. Relationship of Kaka and Arjan was denied and will having been executed by Arjan in favour of Wazir Singh was set up. It was contended that Kaka had relinquished his share in the property during his life time and a writing was executed to that effect. Thus, Kaka was never in possession of his property nor he resided in village Chajli. Sanctioning of mutation was also challenged. Objection with respect to necessary parties not having been impleaded was raised.

(3.) The trial Court found that the plaintiffs were the heirs of Kaka and had a locus standi to file the suit. It was found that Arjan never executed any will in favour of Wazir Singh. All other question like limitation etc were decided against the defendants. As a consequence of the above said findings the suit was decreed. The defendants preferred an appeal before the lower appellate Court. The finding of the trial Court to the effect that the plaintiffs were the heirs of Kaka was challenged on the ground that oral evidence produced did not conform to the provisions of section 50 of the Evidence Act. Thus, except the statement of Joginder Singh the statements of other witnesses are inadmissible and cannot be read into evidence.