M.M.KUMAR, J. - (1.) THIS appeal filed under Section 41 of the Punjab Courts Act, 1918 is directed against the judgment and decree dated 9.11.1984 passed by the learned Addl. District Judge (I) Jind whereby the judgment and decree of the Sub Judge, Safidon dated 25.1.1983 has been upheld and the appeal has been dismissed.
(2.) THE trial Court on issue No. 1 has held that the plaintiff-appellant was not adopted by one Fatta vide registered adoption deed No. 107 dated 10.3.1971. It is property of Fatta which is subject matter of litigation. However, the afore-mentioned finding of the trial Court has been reversed by the learned lower appellate Court holding that the factum of adoption was not denied by the defendant-respondents and therefore it held that the adoption was deemed to be proved. Likewise, on issue No. 4, the trial Court had held that the plaintiff-appellant was estopped from filing the suit on the account of his presence at the time of mutation. The afore-mentioned finding was also set aside by the learned lower appellate Court by holding that mere presence of the plaintiff-appellant at the time of mutation was not to operate as estoppel against him from claiming title in the suit land being adopted son of Phata. Accordingly, the finding recorded by the trial Court was set aside. On issue No. 5, the trial Court had held that the suit was barred by time holding that the limitation to challenge the mutation was one year. However, the learned lower Appellate Court held that the suit for possession filed by the plaintiff-appellant on the basis of title was not barred by time because under Article 65 of the Indian Limitation Act, 1963 it was within time unless the defendant-respondents could prove to have become owner by way of adverse possession. There was no plea raised by the defendant-respondents to the effect that they had become owner by adverse possession and therefore it was held that the suit of the plaintiff-appellant was within time. On the crucial issue No. 6 the trial Court has held that the Will dated 6.4.1971 (Ex-P.1) was not shrouded by suspicious circumstances and that the Will was duly executed by Fatta son of Nanak. The view of the learned lower appellate Court affirming the afore-mentioned finding is discernible from para 14 of the judgment which reads as under : "As regards the finding of the trial Court on issue No. 6 is concerned, the learned counsel for the plaintiff contended before me that in the present case adoption deed Ex.P.1 is dated 19.3.1971 that the Will is dated 6.4.1971 that the testator is proved to be aged 85 years at the time of execution of the Will, that one witness Phata (DW3) admitted that he was taken for attesting the Will by Seeria one of the propounder. So he contended that it would be held that the will is shrouded by suspicious circumstances. It is no doubt true that in the statement of Phata (DW3) it is there that he was called by the propounder to attest the Will, but this circumstance alone is not sufficient to hold that the Will is not genuine. When we peruse the Will we found that the testator has specified therein that due to adoption of plaintiff by him there is dispute amongst his collaterals, that he does not want that the dispute should remain in the family of Nanak about his property, so he is making a Will whereby he is giving property of Nanak in equal shares to all his nephews and the testator. Phata vide the above Will gave the property to all his heirs. So the Will when perused shows that it is a genuine Will and was made by the testator to keep peace in the family. The Will was got written from a petition writer and it was also got attested from Shri Des Raj Punia (DW4) Notary Public. The attesting witness of the Will Phata also supported it. So under the above it will be held that due execution of the Will is proved and the Will is not shrouded by any suspicious circumstances. So the finding of the trial Court about the execution of the valid Will is confirmed."
(3.) WHEN the appeal was admitted by this court on 8.2.1985 no question of law was framed nor any question of law is available in the memorandum of appeal. The Will having been found to be genuine had led to the consequence of affirmation of judgment and decree passed by the trial Court subject to the modifications on finding on adoption etc.;