Ajay Kumar Mittal, J. - (1.) IN this regular second appeal filed by the plaintiff, challenge is to the judgment and decree dated 3.10.1984 passed by the first appellate Court affirming that of the trial Court dated 31.1.1984 whereby the suit of the plaintiff for declaration was decreed and the relief for permanent injunction was declined.
(2.) THE dispute in the present case related to 107 Kanals 9 marlas of land, fully detailed in the head note of the plaint. As per the jamabandi, Ex.P -2, the plaintiff was co -owner to the extent of 8/144" share, Bhagtu had 74/144" share while the rest of the land belonged to the defendants. Bhagtu who was issueless, adopted Charna as his son and gifted his share to him, on the basis of which mutation, Ex.P -3 was sanctioned on 4.5.1932. It was pleaded that Charna died unmarried and issueless on 6/7.9.1980 and the plaintiff claiming himself to be the brother of Charna propounded a Will dated 3.11.1978, Ex.P -1 allegedly executed by said Charna in his favour, on the basis of which mutation Ex.PA was entered. The Will Ex.P -1 was contested by defendants No. 4 to 15 in the mutation proceedings by propounding another Will dated 27.3.1978 having been executed by Charna in favour of defendants No. 4 to 7. Both the Wills were discarded by the Assistant Collector, Ist Grade and the estate left by Charna was devolved as per natural succession vide order dated 28.8.1981, according to which the plaintiff along with his brother Rala and two sisters, got 1/4th share each in the estate of Charna. The plaintiff claimed the whole of the estate of Charna on the basis of Will, Ex.P -1, and filed a suit for a decree for declaration to the effect that he was the co -owner in possession to the extent to 8/144th share in his own right and 74/144th share as the heir of Charna along with' perpetual injunction restraining the defendants from interfering in his possession. Defendants No. 4 to 15 contested the suit by filing a joint written statement and raising various preliminary objections therein. It was pleaded that Charna was the adopted son of Bhagtu and in lieu of services rendered to him and out of love and affection, he executed a Will dated 27.3.1978 in favour of defendants No. 4 to 7. It was further pleaded that the Will propounded by the plaintiff was fictitious, false and a sham document. It was also pleaded that the defendants being the legal heirs of deceased Charna were entitled to succeed his estate. Defendants No. 1 to 3 were proceeded against ex parte by the trial Court. In the replication filed by the plaintiff, he besides reiterating his averments styled the Will dated 27.3.1998 put forth by the defendants as false, forged and fabricated document.
(3.) FROM the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether deceased Charna executed a valid Will dated 3.1.1978 in favour of the plaintiff, if so, to what effect? OPP 2. Whether deceased Charna executed a valid Will dated 27.3.1978 in favour of the defendants No. 4 to 7, if so, to what effect? OPD 3. If both the Wills are not proved who are the natural heirs of deceased Charna and what are their shares in the estate of deceased Charna? OP Parties. 4. Whether the plaintiff is entitled to the declaration and permanent injunction as prayed for? OPP;