SALINDER PARKASH CHAND Vs. CHAMPA DEVI

JUDGEMENT

(1.) The instant regular second appeal has been maintained by the appellant, who was defendant No. 1 before the learned Court below (hereinafter to be called as "defendant No. 1"), laying challenge to judgment and decree, dtd. 29/5/2015, passed by learned Additional District Judge-II, Una, District Una, H.P., in Civil Appeal RBT No. 150/2013/11, whereby the judgment and decree, dtd. 9/8/2011, passed by learned Civil Judge (Jr. Div.), Court No. II, Amb, District Una, H.P., in Civil Suit No. 117/2003, was set aside and suit of the plaintiff was decreed.

(2.) Briefly the facts, which are necessary for determination and adjudication of the present appeal, are that respondent No. 1 (since deceased, through his LRs)/plaintiff (hereinafter to be called as "plaintiff") filed a suit before the learned Court below against defendant No. 1 and other proforma defendants, seeking declaration that the land mentioned in the plaint was jointly owned and possessed by him, alongwith the proforma defendants, having inherited the same from their father, Bansi Lal. The suit land was joint Hindu coparcenary property, in addition to which, Bansi Lal also possessed another piece of land as non-occupancy tenant. However, the mutation of ownership could not be entered in the name of Bansi Lal qua the said land, its owner Kushala Devi was a widow. The possession of the land, though remained with Bansi Lal. It has been averred that Bansi Lal was not keeping good health and was not of sound disposing mind. He was incapable of caring for his welfare and of executing any document. He expired on 6/12/1999 at Hoshiarpur, and his last rites were also performed by the plaintiff. The plaintiff, on approaching the revenue authority for attestation of mutation of the estate of deceased Bansi Lal, came to know that mutation had already been sanctioned on the basis of a Will, dtd. 6/12/1999. It has been further averred that Will, dtd. 6/12/1999 had been procured by defendant No. 1, Salinder Kumar in his favour, in connivance with the marginal witnesses and as such, the same is liable to be declared as illegal and void document. Consequential relief of injunction restraining the defendants from dis-possessing the plaintiff from the land and changing the nature of the same by cutting and removing trees, raising any construction over the same, was also prayed for.

(3.) By filing written statement, claim of the plaintiff was resisted and contested by defendant No. 1, whereas a joint written statement was filed by proforma defendants No. 2 to 5. In written statement, defendant No. 1 raised preliminary objections qua maintainability, limitation, non-joinder of necessary parties and valuation. On merits, it has been contented that deceased Bansi Lal, who was served and looked after by the defendant in his old age, had executed a Will, dtd. 6/12/1999, in presence of witnesses, in a sound disposing mind. It has been further contended that deceased Bansi Lal has expired on 7/12/1999 and not on 6/12/1999, as claimed by the plaintiff. The Will was a legal and valid document, on the basis of which, the defendant had come into possession of the land in question and rest of the contents of the plaint were denied, being incorrect. In a joint written statement, filed by proforma defendants No. 2 to 5, they supported the case of In replication, averments of the written statements were denied and contents of the plaint were reasserted.