GIANO DEVI ALIAS GIANI DEVI Vs. ANANT RAM

JUDGEMENT

(1.) THIS is plaintiffs' regular second appeal against the judgment and decree of the first appellate Court, whereby their appeal, against the judgment and decree of the trial Court dismissing their suit for declaration and injunction, has been disallowed and the decree of the trial Court affirmed. The appeal was admitted on the following three questions:-

(2.) FACTS relevant for the disposal of the appeal, may be noticed. Appellants / plaintiffs Satya Devi and Giano Devi filed a suit for declaration that they were owners in possession to the extent of 1/5th share of land, measuring 38 Bighas 6 Biswas, bearing Khasra Nos. 4, 8, 12, 18, 24, 31, 45, 55, 64, situate in village Nalog, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P., as they had inherited the same on the death of Pohlo, who was the husband of plaintiff Satya Devi and father of plaintiff Giano Devi. It was pleaded that defendants Anant Ram and Nand Lal, respondents No. 1 and 2 herein, had set up a Will, allegedly executed by Pohlo in their favour and were threatening to dispossess the plaintiffs / appellants from the suit land on the strength of the said Will. It was further alleged that Pohlo had never executed any Will and that if any Will executed by Pohlo was found to exist, the same was a result of fraud, undue influence and coercion exercised by the defendants / respondents on Pohlo. It was alleged that earlier the defendants / respondents had filed a suit claiming title to the suit property on the strength of the Will but that suit had been withdrawn without seeking leave of the Court to file a fresh one on the same cause of action and, therefore, they were estopped from taking the stand that there was a valid Will, executed by Pohlo in their favour.

(3.) DURING the course of arguments, learned counsel for the appellants did not make any submission with regard to questions No. 2 and 3, as reproduced hereinabove, and confined his arguments only to one of the formulated questions, i.e. question No. 1, though he did raise an additional point, viz. the defendants / respondents having withdrawn their earlier suit seeking declaration of their title to the suit property on the basis of the Will, were debarred from raising the said plea by way of defence, because of the bar contained in Order 23 Rule 1(4) of the Code of Civil Procedure.