Hemant Gupta, J. - (1.) The plaintiff is in second appeal aggrieved against the [udgment and decree passed by the learned first Appellate Court, whereby suit for possession claiming l/3rd share in land measuring 99 kanals 1 marla, owned by Sawan Singh son of Sahab Ditta was dismissed in appeal.
(2.) Plaintiff Sadhu Singh had two brothers, namely, Maghi Singh and Sawan Singh, Maghi Singh died during the lifetime of Sawan Singh. On 15.5.1977 Sawan Singh died after the death of Maghi Singh. Sawan S.ngh was owner of l/3rd share, in the agricultural land in village Kheri Jarnkhelan Taraf as mentioned in para No. 1 of the plaint and l/9th share in the land mentioned in para 3(c) of the headnote of the plaint. It is the case of the plaintiff that he being brother of the deceased Sawan Singh is a preferential heir to succeed the property of the deceased in preference to the defendants, who are the sons of the pre-deceased brother. The plaintiff challenged decree dated 30.4.1977, alleged to have been obtained by defendants No. 1 to 4 from the Court of Sub Judge, 1st Class, Bassi. It was alleged that the said decree was nullity and confers no title or interest in the property in dispute to the defendants. It is, inter alia alleged that the suit dated 30.4.1977 was sham and fictitious one; was not signed and verified by the plaintiffs and that such suit was decided on the same day on the alleged admission of the defendant Sawan Singh.
(3.) The defendants not only relied upon the decree dated 30.4.1977 as legal and valid but also asserted that Sawan has executed his last Will dated 26.10.1975 of his entire immovable property in favour of defendant Nos. 1 to 4 and thus, it was alleged that the suit is liable to be dismissed. Issue Nos. 1 and 2 are the material issues. Issue No. 1 is to the effect 'whether the decree dated 30.4.1977 is a nullity and not binding on the plaintiff and Issue No. 2 is whether Sawan Singh has executed a valid Will in favour of defendant Nos. 1 to 4'.;