ASHOK BHUSHAN,J. - (1.) This is a defendant's appeal challenging the judgment of the High Court of Punjab & Haryana dismissing the Regular Second Appeal No. 3472 of 2004 of the appellants. The plaintiffs-respondents suit for declaration was dismissed by the trial court which decree was reversed by First Appellate Court decreeing the suit. The High Court affirmed the decree of First Appellate Court.
(2.) The brief facts of the case giving rise to this appeal are:- 2.1 One Bhajan Singh was owner of suit land situated in Village Siraj Majra, Tehsil Amloh, District Fatehgarh Sahib. Bhajan Singh was married with Gurmail Kaur. Two daughters (namely Angrez Kaur and Paramjit Kaur) were born to Bhajan Singh with Gurmail Kaur. Between Bhajan Singh and Gurmail Kaur, a divorce in writing was entered on 15.09.1973 whereafter Gurmail Kaur started residing with one Maghar Singh, the brother of Bhajan Singh in village Jalowal. Gurmail Kaur also took alongwith her both the daughters who were minors at that time to Village Jalowal where they all resided with Maghar Singh. 2.2 Bhajan Singh resided in Village Siraj Majra with Gurcharan Singh, Gurnam Singh and Kulwant Singh, the appellants, who looked after Bhajan Singh. Bhajan Singh executed a registered Will dated 02.09.1986 in favour of Gurcharan Singh, Gurnam Singh and Kulwant Singh, the appellants. A Civil Suit No. 556 dated 21.09.1994 was filed by the appellants impleading the Bhajan Singh as the sole defendant praying for declaration to the effect that plaintiffs are the owners and in possession of the suit land. 2.3 In the plaint, the plaintiff pleaded that defendant had executed a registered Will in favour of the plaintiffs, which was made as per defendant's free will and consent and which was attested and duly registered by Sub-Registrar. It was further pleaded in the plaint that defendant effected a Family Settlement on 15.06.1994 in which suit property was given to the plaintiffs in equal share. In the suit, a written statement was filed by the defendant ­ Bhajan Singh on 03.12.1994 where he admitted the plaint allegations and also prayed that decree be passed in favour of the plaintiffs. On the same day, i.e., 03.12.1994, Bhajan Singh also recorded his statement in the Court, where he stated that averments in the plaint are correct and he has no objection if the suit of the plaintiff is decreed. 2.4 The Court of Additional Senior Sub Judge, Amloh decreed the suit on 09.01.1995. On the basis of admission by the defendant of the claim of the plaintiffs after decree dated 09.01.1995 mutation was also affected of the land in suit in favour of the plaintiff on 03.03.1995. Bhajan Singh died on 24.04.1998. 2.5 After death of Bhajan Singh both Angrez Kaur and Paramjit Kaur filed Civil Suit No. 167 of 19.05.1998 praying for declaration to the effect that decree and judgment in Civil Suit No. 556 of 21.09.1994 decided on 09.01.1995 in respect of the suit property is wrong, without jurisdiction, illegal, null and void, ineffective and inoperative qua the proprietary rights of the plaintiffs as heirs of the said Bhajan Singh. 2.6 In the suit filed by the plaintiffs, the present appellants, who were impleaded as defendants filed a written statement refuting the plaint allegations. It was pleaded by defendants- appellants that after divorce of Bhajan Singh and Gurmail Kaur on 15.09.1973, Bhajan Singh was residing with defendants, who were serving Bhajan Singh. Bhajan Singh out of his free will executed a Will on 02.09.1986 in favour of the defendants. In the suit filed by the defendants -Suit No. 556 of 21.09.1994, Bhajan Singh filed a statement admitting the claim of the defendants including the confirmation regarding execution of Will in favour of the defendants. It is the defendants, who are in possession of suit land, in whose favour, mutation has also been affected. The plaintiffs had no concern with Bhajan Singh, who was residing with defendants at Village Siraj Majra. The vote and ration card of Bhajan Singh was with the defendants, who were serving him like their father. A replication was also filed by the plaintiffs where Family Settlement as well as the Will dated 02.09.1986 was denied. The trial court vide its judgment and order dated 05.03.2003 dismissed the suit of the plaintiffs. 2.7 The plaintiffs aggrieved by the said judgment filed an appeal before District Judge. The first appeal filed by the plaintiffs was decreed and allowed by learned Additional District Judge vide its judgment dated 13.08.2004. The defendants filed Regular Second Appeal before the High Court, which was dismissed by the impugned judgment. This appeal has been filed by the defendants aggrieved with the judgment of the High Court.
(3.) We have heard Shri Pallav Sisodia, learned senior counsel and Mrs. Swarupama Chaturvedi, learned counsel for the appellant. Shri Dhruv Mehta, learned senior counsel had appeared for the respondents.;