JAGDEV SINGH Vs. GURDEEP SINGH

JUDGEMENT

(1.) The present regular second appeal, at the instance of the plaintiff, is directed against the judgment and decree of the lower Appellate Court, whereby the suit for declaration and permanent injunction challenging judgment and decree dtd. 9/10/1981 rendered in Civil Suit No. 485 of 1981, vide which, respondents-defendant Nos. 1 to 4, were declared owner in possession of land measuring 107 kanals 2 marlas, etc., has been dismissed, in essence, judgment and decree of the trial Court decreeing the suit, has been set aside.

(2.) Succinctly, the facts, which emanate from the pleadings of parties, are that on 8/12/1983, plaintiff instituted aforementioned suit, challenging decree on account of misrepresentation, mis-statement of facts and fraud, being null and void qua his rights. It was explained that Kesar Singh was common ancestor and had two sons, namely, Buta Singh and Harnam Singh. Buta Singh had another son Maingal Singh, who died on 19/11/1983, whereas Harnam Singh had two sons and one daughter, namely, Gudial Singh, Gurbax Singh and Dhan Kaur, respectively. Maingal Singh was married to Bhagwan Kaur @ Bhano. Maingal Singh had one daughter, Natho/defendant No. 5. Jagdev Singh-plaintiff was son of Natho/defendant No. 5.

(3.) About 15 years back, was stated to be minor and residing with his father, Mithu Singh, husband of Natho. Plaintiff alleged himself to be minor son of Mithu Singh being natural father and guardian. Maingal Singh was owner of land measuring 127 kanals 2 marlas. He being grandson of Maingal Singh, used to reside with him and his wife Bhagwan Kaur, in Village Lehra Bega as he was getting his education and out of love and affection, Maingal Singh, during his life-time, executed a Will dtd. 14/12/1981, regarding his moveable and immovable properties, in his favour and Bhagwan Kaur, grandmother, in equal shares. The Will was executed from Makhan Singh, Panchayat Secretary of the Village, before the Village Panchayat and read over and explained. Testator appended his thumb impressions, in presence of Makhan Singh, scribe, Gurdev Singh, Sarpanch, Babu Singh, Chhota Singh, Dal Singh and Chetu Singh, Members Panchayat. All the above-said witnesses also signed and thumb-marked. On 15/9/1983, Bhagwan Kaur, unfortunately, passed away. As per Will, half share was given to Bhagwan Kaur and he remained owner of remaining half share, thus, half share was to be inherited by natural heirs. On 19/11/1983, Maingal Singh, died at Village Burj Sema and plaintiff, thus, became owner of half share of the land including 127 kanals 2 marlas of land. Natho/defendant No. 5, mother of the plaintiff, became owner of half share including the suit land. In a family settlement, the aforementioned land was given by Maingal Singh to plaintiff, in Civil Suit No. 594 of 1983. Judgment and decree dtd. 17/10/1983, was also passed in favour of plaintiff and against, Maingal Singh. It is only month before fling of the suit, plaintiff acquired the knowledge of the decree, impugned. It was alleged that Bhagwan Kaur wife of Maingal Singh, was alive, at the time of impugned decree. In fact, Maingal Singh never went to the Court or suffered any statement or signed/thumb-marked any paper, much less, neither any possession was given to defendant Nos. 1 to 4. When steps for forcible possession were taken, suit, aforementioned was filed.