- (1.) This was an appeal preferred by Surinder Singh son of Ajit, appellant-defendant No. 1 (hereinafter referred to as "defendant No. 1") impugning the judgment and decree dated 13.03.1986 granted by learned Additional District Judge, Jalandhar reversing the judgment and decree dated 21.03.1985 passed by Sub Judge 1st Class, Phillaur, by virtue of which the suit for permanent injunction filed by plaintiffs-respondents Piara Singh and another was dismissed. The dispute between the parties was with regard to inheritance of half share owned by deceased Shri Hazara Singh in land bearing Khewat No. 703, Khatoni No. 1167, Khasra No. 683(1-2) having a structure thereon, situated in Village Ruka Khurd, Tehsil Phillaur, District Jalandhar (hereinafter referred as the "suit land"). The plaintiffs-respondents Piara Singh and Swaran Singh sons of Hazara Singh (hereinafter referred to as "plaintiff) claimed to be owners in possession of 2/3rd share in the suit land being sons/class-I heirs of Shri Hazara Singh and also by virtue of Will dated 18.04.1977 allegedly executed by Shri Hazara Singh. Ajit Singh (defendant No. 2) son of Hazara Singh was said to be co-owner to the extent of 1/3rd share as per the recital in the Will.
(2.) Admittedly, Surender Singh (defendant No. 1) is son of Ajit Singh (defendant No. 2) and Smt. Bachan Kaur (defendant No. 3) is the real sister of the plaintiffs and defendant No. 2. The suit land measuring 1 Kanal 2 Marlas was owned by Hazara Singh and Bhan Singh. During their lifetime, they effected partition and Hazara Singh was allotted half share falling towards the Eastern side. Shri Piara Singh and Swaran Singh (plaintiffs) filed this suit for possession by way of partition through metes and bounds of their 2/3rd share out of half share of Hazara Singh in the suit land. As a consequential relief, they sought a decree of Permanent Injunction restraining the defendants from dispossessing them illegally and forcibly from the suit land. They alleged that during the lifetime of Shri Hazara Singh (since deceased) they and Ajit Singh (defendant No. 2) lived with their father Hazara Singh. They looked after and maintained Shri Hazara Singh and for the services rendered by them as well as out of love and affection Shri Hazara Singh executed a valid Will dated 18.04.1977 in their favour and in favour of their brother Ajit Singh (defendant No. 2). By virtue of the Will all three of them inherited equal shares in the suit land to the exclusion of their sister Smt. Bachan Kaur (defendant No. 3). It was further pleaded that Surinder Singh and Ajit Singh (defendants No. 1 and 2) at their back got the half share in the suit land mutated in favour of Surinder Singh (defendant No. 1) vide mutation No. 5894 which was against law and facts. They learnt about the sanction of mutation only when they obtained a copy of the Jamabandi from the Area Patwari. The Mutation No. 5894 was challenged as illegal and the action of the defendants was alleged to be motivated to deprive them (plaintiffs) from inheritance of the property of their father. Pleading that they were put in possession of a portion of the suit land by Shri Hazara Singh himself and were continuing to be in possession of the same and further that they were unable to pull on with Ajit Singh (defendant No. 2), the plaintiffs prayed separation of their 2/3rd share by way of partition.
(3.) The suit was contested by Shri Surinder Singh (defendant No. 1) and by Smt. Bachan Kaur (defendant No. 3) by filing separate written statements. The preliminary objections raised by defendant No. 3 were with regard to non-joinder of necessary parties as the plaintiffs had failed to implead legal heirs of Bhan Singh deceased who were owners of the other half share in the suit land; mis-joinder of cause of action because three reliefs of declaration, possession and permanent injunction had been sought together; valuation of the suit for the purposes of court fee and jurisdiction etc. On merits, the stand taken by defendant No. 3 was that the Will dated 18.04.1977 alleged to have been executed by her father Shri Hazara Singh was a forged and fabricated document. She also claimed to be in possession of the suit land as a co-sharer with the plaintiffs and defendant No. 2.;