RAKESH KUMAR JAIN,J - (1.) DEFENDANTS are in appeal. Both the Courts below have decreed the suit of the plaintiff to the effect that decree dated 23.10.1986 in favour of Sham Kaur is null and void and ineffective against the rights of the plaintiff, who was held to be entitled to succeed to the land in dispute along with defendants in equal share and consequently, restrained the defendants from alienating the suit land in respect of the share of the plaintiff, who was also held to be entitled to joint possession.
(2.) IN brief, the facts of the case are that Sardara Singh and Sham Kaur were husband and wife. They had five sons Teja Singh, Gurdev Singh, Nirmal Singh, Malkiat Singh and Jugraj Singh. Sardara Singh executed an unregistered Will dated 2.4.1978 bequeathing his entire property to his wife Sham Kaur and died on 28.6.1984. After the death of Sardara Singh, Sham Kaur filed Civil Suit No. 257-1 on 29.8.1986 for possession as owner and mortgagee claiming herself to be the sole heir of Sardara Singh on the basis of Will dated 2.4.1978. In this suit, all the five sons filed joint written statement and contested her claim. After Sham Kaur, who was the plaintiff in that suit closed her evidence, Malkiat Singh one of the defendants and Sh. V.K. Bansal, counsel for the defendants, made a statement in the Court on 23.10.1986 that they do not want to lead any evidence. Consequently, the suit was decreed on 23.10.1986 by the Court of Sh. B.J. Nangli, Sub Judge, Zira. Teja Singh, one of the defendants in Civil Suit No. 257-1 dated 29.8.1986 was not satisfied with the aforesaid judgment and decree. He filed suit for declaration challenging the judgment and decree dated 23.10.1986 on the ground that the decree has been obtained by fraud and misrepresentation. He alleged that he is owner of 1/6th share in respect of the property in dispute and also prayed for injunction restraining the defendants Sham Kaur and other four brothers from alienating the suit land to any person. He pleaded that Sardara Singh was owner of land described in Clause (A to E) and as mortgagee in respect of the land mentioned in Clause (F) of the head note of the plaint. According to him, Hardit Singh is still recorded to be owner of the land mortgaged by him who had brought Suit No. 59 of 1963 for redemption of land against Sardara Singh but the same was dismissed being barred by limitation. Hardit Singh preferred appeal against that judgment and decree but it was dismissed by learned District Judge, Ferozepur on 31.10.1965. Thereafter, Appeal No. 268 of 1966 filed by Hardit Singh before this Court was also dismissed on 22.12.1966. Though Sardara Singh became full owner of the mortgaged land but Hardit Singh continued to be recorded in the revenue record as owner of the land. It was claimed that Sardara Singh had died on 28.6.1984 but the mutation of inheritance was sanctioned in favour of Teja Singh, his four brothers and their mother Sham Kaur in equal shares being natural heirs. He claimed that on 29.8.1986 Sham Kaur, at his back, filed suit for possession and ownership of the land against him and his four brothers on the basis of Will which was never executed by Sardara Singh and Sham Kaur in connivance with other defendants, impersonated him (Teja Singh) by some one, got statement recorded in the Court of Sh. B.J. Nangli, Sub Judge, Zira and had obtained a collusive decree in her favour. It was specifically submitted that he was neither served nor he ever appeared in the Court, therefore, there was no occasion for him to suffer a statement in the Court in favour of Sham Kaur.
(3.) DEFENDANTS resisted the suit and filed joint written statement. In the preliminary objections, it was claimed that the suit is barred by principles of res judicata as in Civil Suit No. 257-1 of 1986, they had engaged Sh. V.K. Bansal, Advocate, filed joint written statement and that suit was decided on merits wherein the Will in question has been upheld. It was also pleaded that mutation of inheritance was wrongly sanctioned in favour of natural heirs of Sardara Singh because he had executed a valid Will in favour of Sham Kaur which has been upheld by the Civil Court. According to the defendants, Teja Singh had been attending the Court and the suit has been decided in his presence. Teja Singh also filed replication to the written statement filed by the defendants.;