JAGIRI RAM Vs. RALLA

JUDGEMENT

(1.) IN this regular second appeal filed by the Plaintiff, challenge is to the judgment and decree dated 3rd October, 1984 passed by the first appellate court affirming that of the trial court dated 31st January, 1984 whereby the suit of the Plaintiff for declaration was decreed and the relief for permanent injunction was declined.

(2.) THE dispute in the present case related to 107 kanals 9 marlas of land, fully detailed in the head note of the plaint. As per the jamabandi, Ex. P2, the Plaintiff was co -owner to the extent of 8/144th. share, Bhagtu had 74/144th share while the rest of the land belonged to the Defendants. Bhagtu who was issueless, adopted Charna as his son and gifted his share to him on the basis of which mutation, Ex. P3, was sanctioned on 4th May, 1932. It was pleaded that Charna died unmarried and issueless on 6th/7th September, 1980 and the Plaintiff claiming himself to be the brother of Charna propounded a Will dated 3rd November, 1978, Ex. P1, allegedly executed by said Charna in his favour, on the basis of which mutation Ex. PA was entered. The Will, Ex. P1, was contested by Defendants No. 4 to 15 in the mutation proceedings by propounding another Will dated 27th March, 1978 having been executed by Charna in favour of Defendants No. 4 to 7. Both the Wills were discarded by the Assistant Collector 1st Grade and the estate left by Charna was devolved as per natural succession, - -vide order dated 28th August, 1981, according to which the Plaintiff along with his brother Rala and two sisters, got l/4th share each in the estate of Charna. The Plaintiff claimed the whole of the estate of Charna on the basis of Will, Ex. P1, and filed a suit for a decree for declaration to the effect that he was the co -owner in possession to the extent of 8/144th share in his own right and 74/144th share as the heir of Charna along with perpetual injunction restraining the Defendants from interfering in his possession.

(3.) FROM the pleadings of the parties, the following issues were framed by the trial court: