RAKESH KUMAR JAIN, J. - (1.) BY this common judgment, I shall be disposing of two appeals both filed by Baldev Singh and Ajit Singh arising out of Civil Suit No. RBT 305 of 1998 titled as Baldev Singh and another v. Om Parkash and others in which they have sought declaration with consequential relief of permanent injunction and Civil Suit No. RBT 252 of 1998 titled as Om Parkash and others v. Baldev Singh and another in which possession has been sought with mesne profits.
(2.) IN order to understand the dispute in the present case, it is necessary that the pedigree table be reproduced, which is as under : Plaintiffs-appellants Baldev Singh and Ajit Singhfiled suit No. 305 of 1998 claiming themselves to be the sons of Smt. Khem Kaur who after the death of her husband Bahadur Singh during partition of the country, performed a Kareva marriage with Kartar Singh in the presence of Gurbachan Singh etc. The plaintiffs have alleged that they were minors at that time when their mother Khem Kaur perforned Kareva marriage with Kartar Singh. The said Kartar Singh was owner in possession of land measuring 48 Kanals 6 marlas (land in question). The plaintiffs have alleged that Kartar Singh executed a Will dated 15.11.1982 in favour of Khem Kaur and died on 24.11.1982. It is also alleged that on the basis of Will, mutation was sanctioned in favour of Khem Kaur by the Assistant Collector 1st Grade, Thanesar on 21.10.1985 but thereafter, a civil suit was filed by Anoop Singh (defendant No. 5) claiming himself to be the owner of the land in question on the basis of Will dated 22.11.1971. It was further alleged that in that suit, defendant No. 5 Anoop Singh was held to be the owner in possession of the suit land. An appeal was filed by the plaintiff against the said judgment and decree dated 23.5.1987 and were held to be owners in possession of the land in question. It was also held that Will produced by defendant No. 5 was forged. Defendant No. 5 had also filed an appeal against the order of Assistant Collector 1st Grade against the acceptance of the mutation. The matter came up in the High Court but in the meanwhile, defendants No. 5 to 11 in connivance with the revenue Authorities got the mutation sanctioned in their names but possession of the land in question remained with the plaintiffs. It was also the case of the plaintiffs that they found the Will executed by Kartar Singh dated 15.11.1982 on 14.10.1992 and the same was produced before the Court but subsequently defendants No. 5 to 11 sold the land in question illegally to defendants No. 1 to 4 by virtue of sale deed dated 17.9.1993 without notice to the plaintiffs and without any right, title or interest. It is also the case of the plaintiffs that Naib Tehsildar and Joint Sub Registrar, Ladwa and Tehsildar, Thanesar were informed through registered notices not to register any sale deed, but to no effect. Hence in the suit filed by the plaintiffs Baldev Singh and Ajit Singh, a decree was sought for declaration to the effect that plaintiffs are owners in possession in equal share of the suit land detailed in para No. 2 of the plaint and that the impugned sale deed dated 17.9.1993 executed by defendants No. 5 to 11 in favour of defendants No. 1 to 4 is illegal, null and void and is not binding upon the rights of the plaintiffs and also prayed for decree for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land forcibly and illegally. The suit was contested by defendants No. 1 to 4 and in the joint written statement, they raised preliminary objections that the plaintiffs have no locus standi to file the suit and they are estopped by their own act and conduct and acquiescence. On merits, it was alleged that Kartar Singh, real uncle of Anoop Singh died issue-less and his wife also died during his life time, thereafter, Kartar Singh executed a Will in favour of Anoop Singh etc. voluntarily. Thereafter, upon the death of Kartar Singh, defendant No. 5 Anoop Singh etc. became owner of the suit property and accordingly, mutation was sanctioned in their favour. The plaintiffs filed Civil Writ Petition to issue mandamus directing the revenue authorities to sanction the mutation in their favour and alleged that Khem Kaur died on 21.5.1989 but the said writ petition captioned as Baldev Singh etc. v. Financial Commissioner and others was decided by Hon'ble Mr. Justice N.K. Sodhi in terms of order dated 6.9.1993 observing therein that there is no merit in the writ petition and the same is dismissed. It was also observed that Fauji Singh and Piara Singh had died after the decision of previous Civil Suit No. 4/86 and Civil Appeal No. 65/1987 and as such, Anoop Singh etc. are the legal heirs of deceased Kartar Singh and they have inherited the property in dispute left by Kartar Singh who was their uncle and mutation was rightly sanctioned in their favour. On the basis of their being owners of the land in question, the same had been sold to defendants No. 1 to 4.
(3.) REPLICATION was not filed by the plaintiffs. On the pleadings of the parties, the following issues were framed by the trial Court : 1. Whether the plaintiffs are owners in possession in equal share of the suit property detailed in para No. 1 of the plaint ? OPP. 2. Whether the sale deed dated 17.9.1992 executed by defendants No. 5 to 11 in favour of defendants No. 1 to 4 is illegal, null and void, as alleged ? OPP. 3. Whether the defendants are owners in possession on the basis of sale deed dated 17.9.1993 ? OPD. 4. Whether the suit has not been valued properly for the purpose of court fees and jurisdiction ? OPD.;