IQBAL SINGH Vs. HERNEK SINGH

JUDGEMENT

(1.) THIS shall dispose of Regular Second Appeal No. 527 and 1436 of 1996, R. S. A. No. 527 of 1996 has been preferred by the plaintiff whereas R. S. A. No. 1436 of 1996 has been preferred by proforma defendant, namely, Kako @ Iqbal Kaur. Both the appeals have been directed against the judgment and decree of the Courts below whereby suit filed by the plaintiffs for declaration to the effect that they are owners in possession of 233 Kanals being half share of land measuring 466 kanals, has been dismissed.

(2.) IN brief, the facts are that one Surjan Singh was the owner of land measuring 466 kanals as detailed in the head-note of the plaint. Surjan Singh had three sons, namely, Joginder Singh, Santokh Singh and Baldev Singh. Baldev Singh died issue-less during the life time of Surjan Singh. After the death of Surjan Singh, Joginder Singh and Santokh Singh became the owners of land measuring 233 kanals each. Santokh Singh died issuless leaving behind Jas Kaur being his widow. Mutation regarding the estate of Santokh Singh was sanctioned in favour of Jas Kaur and Jas Kaur became owner in possession of land measuring 233 kanals, being half share of land measuring 466 kanals. Plaintiffs Sukhdev Singh and Iqbal Singh are the sons of Joginder Singh. It is the case of plaintiffs that Jas Kaur died on 3. 6. 1989 and on her death they have become owners of land left by Jas Kaur on the basis of will dated 28. 5. 1989 allegedly executed by her in their favour. Plaintiffs also alleged that Jas Kaur did not suffer any decree during her life time in favour of Harnek Singh, defendant nor she executed any Will on 22. 5. 1989 in favour of Harnek Singh. Plain tiff, thus, prayed in the suit that they be declared owners in possession of land measuring 233 kanals which originally belonged to Santokh Singh and on his death to Jas Kaur. The suit was contested by Harnek Singh, defendant. In his written state ment, Harnek Singh apart from taking the plea of suit being bad for non-joinder of necessary parties or being barred by time, averred that Jas Kaur suffered decree dated 30. 4. 1976 of land measuring 116 Kanals 10 marlas and she also executed will dated 22. 5. 1989 registered on 23. 5. 1989 in his favour, bequeathing in his favour her entire property. Defendar Harnek Singh further submitted that plalntiffs are estopped by their own ct and conduct in challenging the decree because after the passing of decree dated 30. 4. 1976 the land was partitioned among the co-sharers and two agreements dated 12. 11. 1979 were executed to which the plaintiffs and proforma defendants were parties under one part and Jas Kaur and defendant Harnek Singh were parties of the second part. Will dated 28. 5. 1989 set up by the plaintiff was said to be a forged and fictitious document. Harnek Singh, defendant also, filed counter-clalm seeking declaration that he is owner of land measuring 33 kanals 4-1/2 marls which was sold by Jas Kaur on 28. 4. 1976 to the plalntiffs pleading that sale deed was got executed from Jas Kaur under undue influence and threat. Alongwith declara- tion, he sought possession of land measuring 33 kanals 4-1/2 marlas on the ground that sale deed dated 28. 4. 1976 was without any consideration. On the pleadings of the parties, following issues were framed :

(3.) Against this counsel for defendant Harnek Singh has contended that both the courts below have found that the plalntiff has no locus standi to assail the decree suffered by Jas Kaur in favour of Harnek Singh for the reason that the decree was given effect to during the life-time of Jas Kaur. He contended that the decree was suffered by Jas Kaur in April, 1976 whereas she died on 3. 6. 1989 and during all these years, the decree was not challenged, rather the plaintiffs themselves were parties to the agreements dated 12. 11. 1979 by which land was partitioned between Jas Kaur, Harnek Singh and the plaintiffs and proforma defendant. He also contended that otherwise too, suit filed to challenge the decree has become barred by time. As regards the Will, counsel contended that both the Courts below on appreciation of evidence on record have found the Will to have been validly executed by Jas Kaur and this being a finding of fact calls for no interference.