RAMGARHIA BARADARI Vs. HARJIT SINGH

JUDGEMENT

(1.) The defendant-appellant has filed this appeal against the order of the Additional District Judge, Ludhiana, dated 3rd June, 1976, whereby he set aside the judgment of the trial Court on the preliminary issues and remanded the case for proceeding after framing issues on merits of the case.

(2.) The plaintiffs have brought a suit for possession regarding the land in dispute. According to the pedigree table given in the plaint, Chanda Singh had five sons. Out of these, the relevant are Daya Ram and Ghaneya. Daya Ram had a son Nainu, who left three sons Baghel Singh, Natha Singh and Ishwar Singh. The plaintiffs claim to be the grand sons of Baghel Singh. It was alleged that Ruldu Ram, Daya Ram and others formed joint Hindu family with Chanda Singh as karta. The disputed land and the two houses were the joint Hindu family property. That Ruldu Ram died and a mutation was effected in favour of his widow Shiv Devi as a measure of consolidation to her and for that consideration, an entry in the revenue record was allowed to continue. Shiv Devi was residing in village Sahnewal Kalan while Nainu and his sons were carrying on their business and residing at Dehra Dun. Shiv Devi made a gift of one house in favour of Dera Udasian Sahnewal through Mahant Mansa Ram, the Manager of the Dera, on 6th February, 1956. On 3rd December, 1959, she executed a Will in favour of Ramgarhia Baradari Sahnewal, through one Mela Ram, the President of the said Baradari (the present defendant-appellant), bequeathing the disputed land and a house. Shiv Devi was stated to have a limited interest in the property during her life-time and the plaintiffs claimed that she could not have made the aforesaid Will. She died on 26th February, 1960. The execution and validity of the Will was challenged on a number of grounds mentioned in the plaint in para 3 thereof.

(3.) The defendants contested the suit. It was denied that the property was a Joint Hindu family property. The defendants pleaded that Bhagel Singh, Natha Singh and Ishwar Singh had earlier filed a similar suit for possession challenging the validity of the gift in favour of Dera Udasian as also the Will in question. That suit was dismissed and the appeals preferred to the District Judge and the High Court against the said judgments were also dismissed. It was also stated that the grounds taken up in the present suit for setting aside the Will, were also taken up in the previous suit brought under the same title, as the present suit. Therefore, the provisions of Section 11 of the Code of Civil Procedure are attracted. On the pleadings of the parties, the following issues were framed as preliminary :-