VINOD K.SHARMA,J - (1.) THIS appeal has been filed against the order passed by the Addl. District Judge, Patiala dated 25.1.2003 allowing the defendant- appellant to lead evidence by producing certified copies of the order of the Assistant Collector Ist Grade, Samana and Collector, Patiala. Appellant/defendant was further allowed to lead additional evidence to prove the Will dated 31.11.1987 by permitting them to place on record the original registered Will dated 30.11.1987.
(2.) THE brief facts leading to the filing of the present appeal are that the plaintiff-respondent filed a suit for joint possession claiming to be owner to the extent of 1/4 share of the property left with the deceased Hazara Singh and that defendant Nos. 3 and 10 were owner in possession to the extent of 1/4th share each and the remaining 1/4th share was owned by defendant Nos. 4 to 9 in equal share being legal representatives of deceased Amar Singh out of the share of Hazura Singh of the land mentioned in the suit. Challenge was also made to the orders passed by Assistant Collector Ist Grade, Samana dated 22.3.1996 and order of the Collector Patiala whereby mutation of inheritance of Hazura Singh was sanctioned in favour of the contesting defendant and the appellant before the learned Addl. District Judge, Patiala. It was also pleaded by the complainant as under :- "The parties are related to each other as following pedigree table :- Hazura Singh brother of the plaintiff and defendant No. 3 and 10 and uncle of defendant No 4 to 9 died on 2.7.1992 unmarried and issueless leaving behind the defendant No. 3 to 10 as legal heirs and representatives. The defendant No. 1 and 2 are sons of defendant Nos. 3. As per Hindu Succession Act after the death of Hazura Singh plaintiff defendant No. 3 and 10 and Amar Singh's legal heirs i.e. Defendant No. 4 to 9 were entitled to inherit/succeed Hazara Singh to extent to 1/4th share each to plaintiff, defendant No. 3 and 10 and 1/4th share to defendant No. 4 to 9 in equal share being legal heirs and representative of Amar Singh. The mutation of inheritance was got recorded by the defendant No. 1 and 2 in connivance with defendant No. 3 Balkar Singh on the basis of false and fabricated will allegedly executed by Hazura Singh deceased. The mutation was contested and was sanctioned by the Assistant Collector Ist Grade Samana vide his order dated 22.3.1996 illegally in favour of the defendant Nos. 1 and 2 and the Collector Patiala also ordered for mutation in favour of defendant Nos. 1 and 2 which is illegal and arbitrary, and not binding upon the plaintiff and other defendant Nos. 3 to 10. The plaintiff and defendant Nos. 4 to 10 requested the defendant Nos. 1 to 3 admit the claim but they flatly refused to do so. The defendant No. 3 being father of defendant Nos. 1 and 2 connived with defendant Nos. 1 and 2 with intention to grab the share of the plaintiff and defendant Nos. 4 to 10 and further threatened to further alienate or transfer the land by way of exchange, sale, mortgage, gift etc. in favour of some other persons to which they have got no right, title or authority. Hence, this suit."
(3.) THE suit was contested by defendant Nos. 1 and 3. Besides taking preliminary objections on merit, it was submitted as under :- "...... The Pedegree table is not correctly shown and is incomplete. One daughter of Balkar Singh has been ignored who is namely Rajwinder Kaur. It is wrong and denied that Hazura Singh executed a Registered Will in favour of the defendant Nos. 1 and 2 dated 28.11.1987 and on that basis of the said will the mutation has been sanctioned in favour of defendant Nos. 1 and 2. The said mutation No. 902 was hotly contested by the plaintiff and after due contest it was sanctioned in favour of the replying defendant Nos. 1 and 2. An appeal was filed by the plaintiff in the Court of Collector Patiala, District Patiala and the said appeal was dismissed. The mutation was recorded on the basis of will validly executed in favour of the defendant Nos. 1 and 2 and the said mutation was up-held by the Collector, Patiala, District Patiala in appeal. The Khasra-girdawaries are in favour of the replying defendants. Hence, prayed for dismissal of the suit." On the pleadings of the parties the following issues were framed :- "1. Whether the plaintiff, defendant Nos. 3, 10 and Lrs of Amar Singh are owners to the extent of 1/4th share each out of the share of Hazura Singh deceased ? OPA. 2. Whether the plaintiff is entitled to joint possession to the extent of 1/4th share out of share of Hazura Singh ? OPP 3. Whether Hazura Singh executed any Will dated 30.11.1987 in favour of defendant Nos. 1 and 2 ? OPP 4. Whether the suit of the plaintiff is false, frivolous and vexatious to the knowledge of the plaintiff ? OPD 5. Relief." Thereafter on 13.9.2001 the following issues were framed as additional issues :- "1-A. Whether the plaintiff is entitled for declaration as prayed for ? OPP 1-B. Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP" On issue No. 3, the Trial Court held that :- "From my above discussion, I come to the conclusion that the alleged will dated 30.11.1987 executed by Hazura Singh in favour of the defendant Satnam Singh and Gurnam Singh has not been proved. The defendant has examined Ranjit Singh one of the attesting witness of the will but the statement of Ranjit Singh failed to prove the execution of the will. As per defendant's case the above said will has been registered before Sub Registrar Samana but Ranjit Singh while appearing as DW-3 in the Court has not stated that they had appeared before the office of Sub-Registrar, Samana at the time of execution of the Will and the Sub-Registrar had read over the will to Hazura Singh and he marked his thumb impression after admitting it correct. Ranjit Singh failed to prove that Hazura Singh marked his thumb impression on the will after admitting it correct. Moreover, Ranjit Singh has further stated that Satnam Singh and Gurnam Singh beneficiary of the will had accompanied time at the time of execution of the will. It also creates doubt and suspicion regarding the execution of the will that beneficiary Satnam Singh and Gurnam Singh were present at the time of execution of the Will. Moreover, there is no document at all on the file to prove that Hazura Singh was residing with Balkar Singh. No ration card or voter list has been produced by the defendants to prove that Hazura Singh was residing with them. It is also admitted that one of the beneficiary of the will namely Satnam Singh is serving in the army. As such that due to his job he had not served the deceased Hazura Singh. In these circumstances, there is no reason to execute the will in favour of Satnam Singh and Gurnam Singh by deceased Hazura Singh. Ranjit Singh one of the attesting witness stated in his examination-in-Chief that Hazura Singh has executed will in favour of his nephew Satnam Singh. He did not state that will has been executed in favour of Gurnam Singh also. Moreover, as per statement of PW-1 Malook Singh and PW Kirpal Singh, Hazura Singh was not residing with Balkar Singh. All the brothers of Hazura Singh were serving to him. Hence, I came to the conclusion that the alleged will dated 30.11.1987 executed by Hazura Singh in favour of Harnam Singh and Satnam Singh is surrounded by doubt and suspicion. The defendant has not even produced certified copy of the alleged will on the file. As such Hazura Singh had not executed any will dated 30.11.1987 in favour of defendant Nos. 1 and 2. The relationship between the plaintiff and defendant Nos. 3 and 10 and Lrs. Amar Singh are no doubt admitted by the parties. As the plaintiff Malook Singh and defendant No. 3 Balkar Singh and deceased Amar Singh are brother of deceased Hazura Singh and deceased No. 10 Ind Kaur is sister of deceased Hazura Singh. So after the death of deceased Hazura Singh all four legal heirs namely plaintiff, defendant Nos. 3 and 10 and defendant Nos. 4 to 9 LRs of deceased Amar Singh pre-deceased brother of deceased Hazura Singh are only legal heirs of Hazura Singh. They are owner to the extent of 1/4th share each of the share of deceased Hazura Singh. So, being legal heir of deceased Hazura Singh the plaintiff is also entitled to joint possession to the extent of 1/4th share each of the share of deceased Hazura Singh. As such all these issues are decided in favour of the plaintiff and against the defendant." Accordingly, issue Nos. 1 to 3 were decided in favour of appellant. On issue No. 1, the learned trial Court was pleased to hold that the Will dated 30.11.1987 was not proved and accordingly the order of mutation in favour of respondent Nos. 1 and 2 before this Court was also set aside and accordingly the suit filed by the plaintiff was decree. ;