TIRATH SINGH Vs. SAJJAN SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has been directed by the defendants against the judgment and decree, dated September 29, 1979 of the Court of 1st Additional District Judge, Hoshiarpur, reversing the judgment and decree, dated February, 2, 1977 of the trial Court and decreed the suit of the plaintiff.

(2.) BRIEF facts of the case are that Sajjan Singh filed a suit for possession of land measuring 40 Kanals 17-1/4 Marias fully described in Clauses (A) and (B) of the head note of the plaint and entered in Jamabandi for the year 1973-74, situated in Village Dagana Kalan and Haryana, Tehsil and District Hoshiarpur. One Chet Singh was the common ancestor of the parties. Gujjar was the son of Chet Singh. Gujjar had four sons, namely Ralla (Deceased) whose estate is in dispute, Sajjan Singh plaintiff, Santu (deceased) and Inder Singh (deceased ). Tirath Singh, Karnail Singh and Ajaib Singh defendants are the sons of Santu son of Gujar. Ralla was unmarried and died on June 9,1974 without leaving any wife or child. Sajjan Singh plaintiff is real brother of Ralla. It is alleged by Sajjan Singh that after the death of Ralla, defendants had taken possession of the suit land in a wrongful manner claiming that Ralla had executed a valid Will in respect of the suit property in their favour. According to Sajjan Singh, the Will set up by the defendants is not genuine and is a forged document. Ralla was not having sound disposing mind since about 3 years before its death and remained so till his death. At. any rate, the Will set up by the defendants is a result of undue influence, fraud and misrepresentation. The defendants got Mutation No. 1687 sanctioned in their, favour on the basis of alleged Will connivance with the revenue officials at his back without any notice to him. When he came to know that Mutation was sanctioned in favour of the defendants, he filed. an appeal before the Sub-Divisional Officer (Civil) exercising the powers of the Collector. That appeal was accepted Mutation was set aside and the case was remanded to the Circle Revenue Officer. The mutation has not yet been decided. According to Sajjan Singh plaintiff, he has 1/4th share in the suit land bearing khewat No. 20 and l/8th share in the suit land bearing Khewat No. 27. He is claiming possession of share belonging to Ralla deceased in the suit land and is not claiming any share belonging to other co-sharers in Khewats No. 20 and 27. The defendants refused to accept his claim which led him to file the suit.

(3.) THE trial Court framed the following Issues: (1) Whether Ralla deceased executed a valid Will on 28. 1. 72 in favour of the defendants ? OPd (2) In case issue No. 1 is not proved, whether the plaintiff is preferential heir to the estate of Ralla deceased ? OPp (3) Whether the suit as framed is not maintainable. ? OPp (4) Whether the suit is time barred ? OPd (5) Relief.