DAVINDER SINGH Vs. RAJINDER SINGH

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Sec. 100 of the Code of Civil Procedure, lays challenge to judgment dtd. 19/11/2018, passed by learned Additional District Judge-III, Kangra at Dharamshala, District Kangra, H.P., in Civil Appeal No.20-D/XIII/18, affirming the judgment and decree dtd. 29/6/2017, passed by learned Civil Judge (Junior Division-I) Dharamshala, H.P in Civil Suit No.54/2010, titled as Davinder Kumar vs. Rajinder Kumar, whereby suit for declaration with permanent prohibitory injunction having been filed by the appellant/plaintiff (hereinafter referred to as the plaintiff) came to be dismissed.

(2.) Precisely, the facts as emerge from the record are that the plaintiff filed suit for declaration to the effect that the he is owner in possession of land bearing Khata No.67, Khatauni No.84, Khasra No.179/2019, measuring 0/4/0 Hect, to the extent of % share, situate at Mohal Pat, Mouza and Tehsil Dharamshala, District Kangra, H.P. (hereinafter to as suit land) being son and legal heir of late Sh. Bidhi Chand, who died on 3/8/2010 and Will dtd. 4/10/2008, allegedly executed by late Sh. Bidhi Chand in favour of defendant Rajinder Kumar, is result of fraud, coercion and misrepresentation, hence the same is null and void. Besides above, plaintiff also sought relief of permanent prohibitory injunction restraining the defendant to interfere in the suit land and from dispossessing him, changing the nature and alienating the suit land. Plaintiff averred in the suit that he as well as defendant are the sons of late Sh. Bidhi Chand and their mother had died on 11/1/2010. Plaintiff claimed that he being legal heir of late Bidhi Chand, has right of succession over the estate of late Sh. Bidhi Chand. He also claimed that deceased Bidhi Chand had made arrangement of his movable and immovable property between the plaintiff and defendant during his lifetime and in terms of this arrangement, he had given possession of one- one room to the parties out of three rooms' house. He claimed that after that he constructed second room, kitchen, bathroom etc. adjoining to the given room with the permission and consent of his father. He also claimed that deceased Bidhi Chand was living separately during his lifetime and it is he only, who served and looked after him. He also claimed that he performed the last rites of his father. Plaintiff averred that he came to know about the execution of Will dtd. 4/10/2008 after the death of his father in the month of August, 2010 when defendant came to proclaim openly that he is owner of the suit property. He alleged that deceased Bidhi Chand was not in good state of mind and as such, defendant taking undue advantage of his health, got the Will dtd. 4/10/2008 executed in his favour fraudulently. Aforesaid claim put-forth by the plaintiff came to be resisted and contested by defendant, who in his written statement besides taking preliminary objections of maintainability, cause of action, locus standi, estoppel, concealment of material facts and valuation, admitted that parties are sons of deceased Bidhi Chand and their mother died on 11/1/2010. However, defendant specifically denied that plaintiff and he are having succession right over the estate/property of deceased Bidhi Chand. He claimed that late Sh. Bidhi Chand executed a valid registered Will dtd. 4/10/2008 in his favour, bequeathing thereby suit property in his favour. He specifically denied factum with regard to execution of family arrangement, if any, made by late Bidhi Chand thereby giving one-one room to plaintiff and him during his life time. He claimed that plaintiff has occupied one room in the house situate on the suit land, which was owned and possessed by deceased Bidhi Chand and after his death, he is the owner in possession of the suit land and property, as per registered Will dtd. 4/10/2008. Defendant also denied the factum with regard to construction of one room, kitchen, bathroom etc. as claimed by the plaintiff, with the permission and consent of deceased Bidhi Chand. He also denied that deceased Bidhi Chand was living separately during his lifetime, but claimed that he was living with him and his family. He also claimed that he looked after his father and rendered all services to him during his lifetime and in lieu of his services, his father executed a registered Will dtd. 4/10/2008 in his favour. Defendant denied that deceased Bidhi Chand was not able to understand the minor things of life due to his extreme old age and illness. He claimed that deceased Bidhi Chand remained in service in M.C. Dharamshala and he was in good state of mind. He contended that Will dtd. 4/10/2008 was dictated by deceased Bidhi Chand and after reading the same, signed the Will in the presence of witnesses, who inter alia signed the same in the presence deceased Bidhi Chand and as such, Will being valid and genuine, is binding upon the parties.

(3.) Plaintiff by way of replication refuted the stand taken by defendant in the written statement and re-asserted his claim as set up in the plaint. On the basis of pleadings adduced on record by respective parties, following issues were framed :-