RAKESH KUMAR GARG,J. - (1.) THIS is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit filed by the plaintiff for joint possession as owner of the property in dispute and for permanent injunction restraining the defendants from alienating,transferring,mortgaging or creating any sort of charge whatsoever over the said land has been decreed.
(2.) BRIEFLY stated the case of the plaintiff is that she is the daughter of Karnail Singh son of Harcharan Singh resident of village Chhoti Jhakian, Tehsil and District Ropar and defendant No. 2 is son of Karnail Singh and defendant No. 3 is widow of Karnail Singh. The plea of the plaintiff is that she is widow of Jagtar Singh son of Karnail Singh who is suffering from AIDs before his marriage which took place on 15.12.2000 and lateron he died on 21.8.2002. No issue was born out of their wedlock. Due to this disease of the husband of the plaintiff, she is also suffering from the said disease which came to her knowledge after the death of her husband. It is further averred that during the life time of Jagtar Singh, the plaintiff was residing at village Chhoti Jhakian with her husband and other family members. After the death of her husband, she is residing at village Paprala with her parents who are bearing all the expenses for the treatment of the plaintiff. After the death of her husband, the father in law of the plaintiff Shri Karnail Singh died on 14.7.2003 at village Chhoti Jhakian. The plaintiff and defendants are the legal heirs of the deceased and she being the widow of deceased son of Karnail Singh has one fourth share in the suit land as she has stepped into the shoes of her husband after her death. Defendants No. 1 to 3 are alleging a Will in their favour and on the basis thereof, they got the mutation of inheritance sanctioned in their name as per the alleged Will dated 29.12.2002. The alleged Will dated 29.12.2002 is wrong, illegal, null and void having no effect on the rights of the plaintiff to the suit property. Karnail Singh never executed any document in favour of any body. He was having love and affection towards the plaintiff and he was served by Jagtar Singh and the plaintiff during his life time. The said Will is forged by the beneficiaries in connivance with the witnesses. Mutation No. 395 dated 24.9.2005 is illegal and the same is liable to be rejected. The plaintiff requested the defendants to admit her claim, but to no effect. Hence this suit. Defendants No. 1 to 3 filed joint written statement seriously contesting the claim of the plaintiff. By way of preliminary objections, they have challenged the maintainability of the suit in the present form; the plaintiff being estopped by her own act and conduct from filing the suit as she left the house of the defendants after the death of Jagtar Singh and took away the entire house hold articles according to panchayat compromise. Deceased Karnail Singh executed a valid Will dated 29.12.2002 regarding his own property in favour of the defendants and this fact is also to the knowledge of the plaintiff and the plaintiff also admitted the said Will to be correct before Assistant Collector Ist Grade (Tehsildar) Ropar. It has been asserted that since Karnail Singh has left behind a valid Will dated 29.12.2002 regarding inheritance to his estate, the plaintiff has got no right in the property left behind by deceased Karnail Singh. All other material averments of the plaintiff have been denied and prayed for dismissal of the suit with costs.
(3.) AFTER hearing learned counsel for the parties and appreciating matter in controversy in light of the material available on record, the trial Court recorded a finding on issue No. 3 against the defendant while issues No. 1 and 2 have been decided in favour of the plaintiff and as a result thereof, the suit filed by the plaintiff was decreed with costs to the effect that she is entitled to joint possession to the extent of one fourth share out of one third share of deceased Karnail Singh out of the suit property and the defendants are restrained from alienating or disposing of the share of the plaintiff out of the suit property.;