SURESH KUMAR Vs. ISHWAR CHAND

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgments and decrees dtd. 15/6/2009 and 6/1/2009 rendered by the Court of Additional District Judge, Kaithal and Additional Civil Judge (Sr. Division) Kaithal respectively whereby the appeal and suit filed by the appellant were dismissed.

(2.) Upon notice, the respondents-defendants No. 1 appeared and contested the suit by filing a comprehensive written statement. Inter-alia, the appellant pleaded in the preliminary objections that the suit is time barred and that the appellant has no locus standi and cause of action in his favour. It has also been pleaded that the appellant has not come to the Court with clean hands, rather suppressed the true and material facts. Smt Reshmi died intestate, and after her death, her estate was to be devolved upon her all legal heirs in equal share. As defendant-respondent No.1 -Ishwar was in Military service, thus , having full faith in the appellant, he allowed him to cultivate the suit land on his behalf as well. Neither the appellant gave the share of crop to the respondent No.1-Ishwar nor did he allow him to cultivate the suit land, which led the respondent No.1-Ishwar to file a suit for rendition of account and an application for partition of the joint land. The appellant also appeared in those proceedings but never raised any plea regarding execution of any Will. It has been pleaded that Smt. Reshmi used to live with respondent No.1 and that neither any Will has ever been executed by her in favour of the appellant nor the appellant ever served her. It has also been pleaded that the suit is time barred. On these premises, the dismissal of the suit has been prayed for.

(3.) Defendant Nos. 3 to 6 also filed written statement wherein it is pleaded that Reshmi Devi died intestate and after her death, natural succession opened amongst her legal heirs and claimed their share through natural succession. It has also been pleaded that the mutation of succession was accordingly entered and entries of ownership were made in the presence of the appellant-plaintiff. The Will dtd. 5/5/1985 is stated to be nothing but an act of fraud and collusion on part of appellant-plaintiff and that the appellant has never been in cultivating possession of the suit land. On these premises, the respondent-defendant No.3 has pleaded for dismissal of the suit. The respondent-defendant Nos. 4 to 6 are the bonafide purchasers and the sale is in their favour under Sec. 41 of the Transfer of Property Act and the suit of the appellant is barred under Sec. 34 of the Specific Relief Act.