Raj Kumar Mahajan, J. - (1.) THIS is a second appeal against the judgment and decree dated 25.9.1981 passed by Sri Om Pal, Additional Civil Judge, Ghaziabad allowing Civil Appeal No. 370 of 1977 and setting aside the judgment and decree dated 24.10.1977 passed by Sri Jagdish Chand Sharma, IInd Additional Munsif, Ghaziabad dismissing original Suit No. 711 of 1974, Niranjan v. Maluk Singh. The brief facts from which the appeal has arisen are as under. The plaintiff filed the suit for permanent injunction praying that the defendants be restrained from selling or alienating the property in dispute in which the plaintiff had half share as the property in dispute was ancestral. The allegation made in the plaint is that the plaintiff and the defendants are members of joint Hindu family. A pedigree has been given in para I of the plaint which is reproduced as under: - - It may be pointed out that Khubi had two wives. They were Mst. Hanso and Smt. Dalipo. Mst. Hanso gave birth to Mahraj Singh and Mst. Dalipo gave birth to Maluk Singh from the union of Khubi. Mahraj Singh had expired. It is an admitted fact that Mahraj Singh was pre -deceased Khubi. Khubi died on 18th September, 1959.
(2.) THE plaintiff -respondent Niranjan Singh son of Mahraj Singh, filed a suit on the basis of a registered Will dated 18.5.1949 as Khubi has transferred half share in favour of Niranjan Singh by virtue of the said Will deed to save his interest. It may be stated that Smt. Khanjano, mother of plaintiff after the death of Mahraj Singh, started living with Maluk Singh as his wife along with the plaintiff. That is why at some places, the parentage of plaintiff is entered in the revenue record as Maluk Singh. There was agricultural property including a house as alleged by plaintiff acquired by Khubi. Regarding half share of plaintiff, a Will was made in 1949 by Khubi. The plaintiff gained knowledge of the Will later on and filed suit (being Suit No. 711 of 1974) claiming ownership of half of the property on the basis of Will and relief of injunction to the effect that the property in dispute be not alienated in any way. It was also alleged as well as vehemently argued during the course of argument by the learned counsel plaintiff -respondent that in view of Section 171 of U.P.Z.A. and L.R. Act, the grand -son of pre -deceased son has equal right to succeed. Hence by virtue of Will or even otherwise the plaintiff was owner in possession to the extent of half share in the property. The defendant -appellant controverted the allegations, it was denied by him that plaintiff was son of Mahraj Singh. The property could not be transferred by way of Will. The Will is fictitious and forged paper and the civil court has no jurisdiction to try the suit. The matter is cognizable by revenue court under the U.P.Z.A. and L.R. Act. It was also asserted that the land after the abolition of zamindari was Sirdar land and is exclusively acquired by Maluk Singh and was not ancestral property and, therefore, no Will can be executed.
(3.) THESE are the brief facts of the parties out of the controversy arisen.;