RAJBIR KAUR Vs. BALBIR SINGH SANDHU

JUDGEMENT

(1.) Briefly stated facts of the case are that plaintiffs Rajbir Kaur-daughter and Joginder Pal Singh Sandhu-son of Sh. Darshan Singh Sandhu, besides one Gurdeep Chahal, all residents of Canada had brought a suit against Balbir Singh Sandhu, Surinder Pal Singh Sandhu, Sarbjeet Singh Sandhu, sons and Jagdeep Kaur Goraya, Kanwaljeet Kaur Dhaliwal-daughters and Smt. Bakshish Kaur, wife of Sh. Darshan Singh Sandhu as well as six others, seeking a declaration that mutation sanctioned vide No.1738 dated 09.03.1999 by Assistant Collector, Amritsar in respect of agricultural land, situated in the revenue estate of Village Bhakna Khurd, Tehsil and District Amritsar with regard to the inheritance of late Sh. Darshan Singh Sandhu is null and void and is a result of fraud and forgery and is ineffective qua the rights of the plaintiffs and other LRs of Sh. Darshan Singh Sandhu and said mutation is liable to be sanctioned on the basis of Will dated 22.05.1996 and further the mortgage deed executed by Balbir Singh Sandhu and Surinder Pal Singh Sandhu- defendants on 03.04.2000 in favour of Gurpreet Singh, Ravinder Singh, Balwinder Singh and Harpal Singh-defendants for 49K-5M and 24K-2M of land situated at Village Bhakna Khurd, Tehsil and District Amritsar, fully detailed in the headnote of the plaint as well as mutation No.1738 dated 09.03.1999 on the basis of Will dated 12.08.1998 are null and void. In addition to that, the plaintiffs have sought partition and separate possession of -? share of land jointly owned by Joginderpal Singh-plaintiff and defendants No.1 to 3, holding that mortgaging of 41K-14M out of it by mentioning specific khasra numbers is null and void. In addition to that, plaintiffs have sought decree for permanent injunction, restraining defendants No.7 to 10 from taking possession and cultivating specific khasra numbers of land measuring 41K-14M having been mortgaged by defendants No.1 and 2 illegally and wrongly and further restraining defendants No.11 and 12 from handing over the possession of land measuring 41K-14M, 49K-5M and 24K-2M from defendants No.7 to 10. In the alternative, plaintiffs have sought possession of land measuring 49K-5M and 24K-2M from defendants No.7 to 12 and sought recovery of arrears of rent/lease money as well as mesne profits for use and illegal occupation of land measuring 73K-7M.

(2.) As per version of the plaintiffs, Sh. Darshan Singh Sandhu son of Sh. Balwant Singh was owner of the landed property, situated at Village Bhakna Khurd, Tehsil and District Amritsar. Sh. Darshan Singh Sandhu had gone to Canada and settled there. He died on 05.01.1999 and is survived by his four sons, namely, Balbir Singh (defendant No.1), Surinder Pal Singh (defendant No.2), Sarbjeet Singh (defendant No.3), Joginder Pal Singh (plaintiff No.3) and three daughters, namely, Rajbir Kaur (plaintiff No.1), Kanwaljeet Kaur (defendant No.5), Jagdeep Kaur (defendant No.4), besides a widow namely Bakshish Kaur (defendant No.6). During his life time, Sh. Darshan Singh Sandhu had executed a Will dated 22.05.1996, vide which, he had bequeathed all his properties in favour of Gurdip Singh Chahal (plaintiff No.2). The existence of Will was notified to all the LRs by the Executor/trustee by writing a letter dated 13.03.1999. On 31.03.2000, plaintiff No.2 moved an application before Tehsildar, Amritsar for sanctioning of mutation of agricultural land on the basis of Will dated 22.05.1996 in his favour. At that time, plaintiffs came to know that defendants No.1 and 2 had got sanctioned mutation No.1738 dated 09.03.1999 illegally on the basis of a Will and they were trying to mortgage the property of Sh. Darshan Singh Sandhu deceased to some persons. The plaintiffs moved an application before Sub Registrar, to stop the attestation of mortgage deed. They also raised a plea that Sh. Darshan Singh Sandhu had executed a Will dated 22.05.1996 only, as such, defendants No.1 and 2 have no right to mortgage property but the Sub Registrar did not accept the plea and attested the mortgage deed illegally. According to the plaintiffs, the mortgage of land in favour of defendants No.7 to 10 is illegal. Defendants No.1 and 2 have no right to hand over the property in dispute to defendants No.7 to 10. The plaintiffs had filed the appeal, challenging the mutation No.1738 which is pending adjudication before Sub Divisional Officer, Amritsar. The plaintiffs had also filed a petition for reviewing the order sanctioning mutation No.1738 dated 09.03.1999. Since the Will dated 22.05.1996 is in favour of plaintiff No.2, therefore, he is entitled to claim lease money from defendants No.11 and 12 for the year 2000 @ Rs.7000/- per acre for area 146K-14M, which comes to the tune of Rs.60,780/-, after deducting the amount of Rs.1,95,000/- which has already been paid by defendants No.11 and 12. The plaintiffs are also entitled for mesne profits for an area 73K-7M from defendants No.7 to 10 @ Rs.7000/- per acre, amounting to Rs.63,945/-, besides seeking recovery of mesne profits. The plaintiffs prayed that their suit be decreed.

(3.) On getting notice, defendants No.1, 2 and 7 to 10 appeared and filed written statements, contesting the suit. The plaintiffs had withdrawn the suit against defendant No.4, whereas, the remaining defendants were ordered to be proceeded against ex parte. Although, LRs of defendant No.10 had filed a separate written statement but it is on the similar lines as filed by defendants No.1, 2 and 7 to 9. The contesting defendants had raised various legal objections with regard to maintainability of the suit, locus standi of the plaintiffs to bring the same; the suit being bad for non joinder of necessary parties; suit not properly valued for the purpose of Court fee and jurisdiction; the plaintiffs being estopped by their act and conduct to file the present suit; the plaintiffs having concealed material facts from the Court. According to the defendants, the property in dispute is a coparcenary property, in which defendants No.1 and 2 are coparceners. On merits, the defendants admitted relationship of parties as alleged in the plaint and the land in dispute was previously owned by Sh. Darshan Singh Sandhu father of defendants No.1 and 2. According to the defendants, the property in question was not self acquired property of Sh. Darshan Singh Sandhu, rather, he had inherited the same from his fore-fathers. The answering defendants admitted the execution of mortgage deeds, though, denied the execution of power of attorney by the plaintiffs in favour of Sandeep Sharma and execution of Will dated 22.05.1996 by Sh. Darshan Singh Sandhu in favour of plaintiff No.2. As per version of defendants, on 12.09.1998, Darshan Singh had executed a valid Will in his sound disposing mind in favour of four sons, who are plaintiff No.3 and defendants No.1 to 3 in the suit; that mutation No.1738 dated 09.03.1999 was illegally and validly incorporated in the revenue record on the basis of Will. The defendants denied that plaintiffs have moved any application for challenging the mutation No.1738 or that defendants No.11 and 12 are in possession of the land as lessees paying lease money to plaintiff No.2 @ Rs.7000/- per acre. According to the defendants, the possession of the land was handed over by defendants No.1 and 2 on execution of mortgage deeds by those defendants in favour of defendants No.7 to 10 and since then, defendants No.7 to 10 are in possession of property in dispute being its mortgagers with possession. Such defendants denied the remaining assertions and prayed for dismissal of the suit.