R.L.ANAND,J. - (1.) BASAKHA Singh, defendant No. 1 in the trial Court, has filed the present R.S.A. and it has been directed against the judgment and decree dated 10.10.1990 passed by the Court of Additional District Judge, Barnala, District Sangrur, who affirmed the judgment and decree dated 31.1.1987 passed by the Sub Judge Ist Class, Barnala, who decreed the suit of the plaintiff-respondent Jit Singh for declaration as prayed for.
(2.) JIT Singh plaintiff-respondent filed a suit for declaration that he is the owner in possession in respect of the share of the deceased Daman Singh son of Sunder Singh in the land measuring 91 Kanals 13 Marlas on the basis of the will dated 13.3.1984 executed by Daman Singh deceased in his favour and that the sale deed is ineffective against the rights of the plaintiff and for the relief of perpetual injunction for restraining the defendants from interfering with the possession of the plaintiff in respect of the land measuring 18 Kanals 12 Marlas, fully described in the head-note of the plaint, situated in village Sehna, which was alienated by Jangir Kaur defendant No. 2 in favour of Basakha singh defendant No. 1, and that Basakha Singh defendant No. 1 should not alienate the same in any manner. The case set up by the plaintiff was that Daman Singh deceased during his life time executed a will dated 13th March, 1984 (Ex. P1). Daman Singh was not a married person. The plaintiff occupied the suit land during the life time of Daman Singh as co-sharer. The plaintiff used to cultivate the land both of his share and of Daman Singh and has been cultivating the same now. On the basis of the will be has become the owner of the land. The plaintiff alleged that defendant No. 1 Basakha Singh (now appellant), impersonating defendant No. 2 Smt. Jangir Kaur as the widow of the deceased (Daman Singh) got the sale deed No. 685 dated 29.11.1984 executed in his favour fictitiously, whereas Smt. Jangir Kaur was not the widow of Daman Singh. There had been no marriage between Daman Singh and Smt. Jangir Kaur. The mutation in respect of the inheritance of Daman Singh had not been decided at the time of the institution of the suit. Therefore, Smt. Jangir Kaur was not competent to alienate the property of Daman Singh. The defendants wanted to occupy forcibly the land measuring 91 kanals 13 marlas and they made an attempt for forcible occupation on 13.12.1984. Defendant No. 2 wanted to alienate the property by transferring the same on the basis of the sale deed executed by her in favour of defendant No. 1 Basakha Singh. Hence the suit.
(3.) NOTICE of the suit was given to the defendants and objections were taken, such as, the suit was not maintainable in the present form; that the suit is barred by time; that the suit is liable to be dismissed under Order 7 rule 11, CPC; that the plaintiff has got no locus standi - cause of action to file the suit; that the suit is bad for non-joinder and mis-joinder of necessary parties and that the defendants are entitled to the special costs of Rs. 2,000/-. On merits it was pleaded by the defendants that the plaintiff never came into possession of the suit land, which has been occupied by Smt. Jangir Kaur defendant No. 2 after the death of Daman Singh as his widow. Smt. Jangir Kaur out of the land owned and possessed by her sold 15 Kanals 10 Marlas of land to Basakha Singh defendant No. 1 on 29.11.1984 for a consideration of Rs. 25,000/- and delivered the possession thereof to him. Defendant Basakha Singh is a bona fide purchaser for a valuable consideration and without notice. The possession with respect to the remaining land is with Smt. Jangir Kaur and Daman Singh did not execute any will in favour of plaintiff Jit Singh. The will propounded by the plaintiff is a forced and fictitious document and the same has been prepared in conspiracy with the attesting witnesses of the same. The defendants also denied the plaintiff being the grandson of the sister of deceased Daman Singh. it has been alleged that Daman Singh had no sister. Daman Singh was married with Smt. Jangir Kaur defendant, who is his widow. Smt. Jangir Kaur used to serve the deceased. On 7.11.1984 the plaintiff filed an application before the Naib Tehsildar, Bhadaur admitting Smt. Jangir Kaur to be the widow of Daman Singh and, therefore, he is estopped from filing the suit by his act and conduct. The application moved by Jit Singh to the Assistant Collector Grade II, Bhadaur for the correction of the Girdawari has been dismissed. After controverting the other allegations of the plaint, the defendants prayed for the dismissal of the suit.;