PARSO S/O DEU Vs. SURESH KUMAR

JUDGEMENT

(1.) THIS is a Regular Second Appeal filed by the appellant/defendant under Section 100 C.P.C. against the judgment and decree dated 23.6.2008 passed by the learned District Judge, Chamba, affirming the judgment and decree of the Court of learned Civil Judge, (Junior Division), Chamba, dated 15.5.2006, vide which the suit of the plaintiff/respondent for declaration and possession had been decreed.

(2.) BRIEFLY stated, the facts of the case are that the respondent herein after referred to as the plaintiff, filed a suit for declaration and possession in the alternative as against the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. appellant hereinafter referred to as the defendant. It was alleged by the plaintiff that the land in suit was owned and possessed by Bainsu, his father, who died on 4.9.2001 at village Dehoi Pargna Jund. It was alleged that Bainsu had left no other legal heir except the plaintiff who being his son was entitled to inherit the moveable and immoveable property of his father late Bainsu. It was alleged that the said Bainsu was not keeping good health and the plaintiff being his son was rendering him all services. Defendant No. 1 is brother of late Bainsu and was living separately from Bainsu and Bainsu was not of sound disposing mind and was not keeping hood health due to his oldage.

(3.) 9.2001, the plaintiff approached the revenue authorities to sanction mutation in his favour, but defendant No. 1 produced one forged and fictitious Will purported to have been executed by Bainsu in favour of defendant No. 1 and the mutation was attested in favour of defendant No. 1 inspite of objections by the plaintiff. The plaintiff alleged that the deceased was not competent to execute any Will, which was result of fraud and misrepresentation and the suit land was ancestral, which was inherited by the deceased and his ancestors and as such, the mutation was wrongly attested. Hence, the suit for declaration and possession filed by the plaintiff. 4. The defendant pleaded that the suit property was not ancestral property and the deceased had executed a valid Will on 28.8.2001 in favour of the defendant, which was duly registered and the mutation was, therefore, rightly sanctioned in favour of the defendant. It was pleaded that the deceased was being looked after by the defendant and he validly executed the Will in favour of the defendant and hence, the suit is liable to be dismissed.