MAJOR SINGH Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) THIS is plaintiffs' regular second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the defendant-respondent against the judgment and decree of the trial Court has been accepted and the suit filed by the appellants which was decreed by the trial Court, has been ordered to be dismissed.

(2.) -3. Brief facts of the case necessary for the decision of this appeal as per the pleadings of the parties are that the appellants filed a suit for declaration to the effect that they are owners in possession of the suit land as detailed in the head note of the suit being the legal heirs of Buta Singh son of Waryam Singh and mutation No. 12245 is illegal, null and void. The plaintiffs also sought a consequential relief of permanent injunction restraining the defendants from alienating the suit land in any manner and from forcibly dispossessing the plaintiffs from the above mentioned suit land. It was further alleged that previously one Chetu was the owner of the whole land measuring 231 kanals 19 marlas and was succeeded by his two sons Bhagwana and Waryam Singh. The plaintiff-appellants who are the children of Bhagwana became owners of half share of the aforesaid land which had fallen to the share of their father Bhagwana. The other half share which had come to the share of Waryam Singh was inherited by his son Buta Singh. It is further alleged that Buta Singh son of Waryam Singh left India in the year 1938 and settled somewhere in a foreign country. The plaintiffs and other inhabitants did not hear about Buta Singh since 1938 till date. So, it is presumed that Buta Singh had died. It is the further case of the appellants that Buta Singh remained unmarried and issueless during his life-time. The defendant is alleging himself to be the son of said Buta Singh. Mutation No. 12245 sanctioned in favour of the defendant and Bhagwan Kaur alleged widow and Charan Kaur alleged daughter of Buta Singh is forged which was sanctioned at the back of the plaintiff. Bhagwan Kaur and Charan Kaur were not widow and daughter of Buta Singh respectively. The said Mukhtiar Singh, Charan Kaur and Bhagwan Kaur had never visited India. Mukhtiar Singh for the first time was seen in the village about 15 days ago. They had not visited in the year 1966 when the mutation was sanctioned in their favour. The plaintiffs are in possession of the suit land since the year 1938. Now the defendant has alleged that Bhagwan Kaur and Charan Kaur had also died and mutation No. 17747 was entered in his favour. The defendant had concocted a story. The defendant never came to India and the plaintiffs never paid any share of produce to anybody else. The plaintiffs were the real son and daughter of Bhagwana. Bhagwana was real brother of Waryam Singh, father of said Buta Singh. So the plaintiffs being reversioners of Buta Singh are entitled to the property in dispute. The defendant who has no right or interest in the suit land wants to grab the same and take undue advantage of the illegal mutations, and further wants to alienate the suit land and for this purpose he wants to take forcible possession of the suit land for which he has no right to do so. Two days back, he had tried to take forcible possession of the suit land but the situation was saved due to timely intervention of some respectables of the village. The defendant was asked to admit the claim of the plaintiffs but he refused to do so. Hence, this suit. On the other hand, the defendants filed written statement taking various preliminary objections regarding maintainability of the suit, locus standi, estoppel and limitation. It was also alleged that mutation of inheritance of Buta Singh was sanctioned in favour of the defendant and his mother Bhagwan Kaur and sister Gurcharan Kaur in equal shares in the year 1964 being the legal heirs of the deceased Buta Singh. The said Bhagwan Kaur had also died in the year 1976 and mutation of inheritance was also sanctioned in favour of the defendant and his sister. The said Gurcharan Kaur also died and mutation of her share was also sanctioned in favour of the defendant and thus, the defendant has become the full owner of the share of property of Buta Singh. 4. On merits, it was alleged that Buta Singh was married with Bhagwan Kaur. The defendant along with Gurcharan Kaur were born out of this wedlock. The name of the defendant was recorded in the revenue record and presumption of true is attached thereto. Buta Singh was married with Bhagwan Kaur at village Kokari Hare Tehsil Moga. He was residing in Malaysia. The defendant was also residing in Malaysia. In the year 1956, the defendant shifted to Singapore. Singapore at that time was a part of Malaysia. In the year 1965, Singapore got its independence. Malaysia was under the control of United Kingdom. The educational certificate of defendant Mukhtiar Singh shows that he is the son of said Buta Singh. The citizenship certificate of Buta Singh shows that the defendant is the son of Buta Singh. The mutation had been rightly sanctioned in favour of the defendant, Mukhtiar Singh, Bhagwan Kaur and Gurcharan Kaur. It was further alleged that the plaintiffs negotiated with the defendant to purchase the suit land. However, the same could not materialize. Rest of the allegations were denied as wrong. Consequently, it was prayed that the suit be dismissed with costs. 5. In replication, the plaintiff reiterated his averments as contained in the plaint and denied those in the written statement of the defendant. Out of the pleadings of the parties, the following issues were framed :