Bhagwan Singh and Another vs Inder Kaur (deceased) and Others

G.C. Garg, J.—The dispute in this second appeal is about the Estate of Dula Singh who died on August 26, 1957. Inder Kaur and Mangal Kaur filed the present writ suit for possession alleging that they were entitled to 1/7th share of the land in suit in view of the provisions of Hindu Succession Act being daughters of Dula Singh, deceased. It was further pleaded that sons of Rattan Singh, pre-deceased son of Dula Singh alongwith Bhagwan Singh and Dial Singh sons of Dula Singh sold the suit land in favour of Tara Singh and the Zara Singh on the allegation that Dula Singh had executed a Will dated August 18, 1957 in their favour in respect of the suit land. The execution of the Will in their favour was denied alleging that it was a fabricated and forged document. The defendants having refused to deliver possession, the present suit was filed. The suit was contested by two set of defendants. The present appellants admitted in the written statement that Dula Singh their father was the owner of the suit land and the plaintiffs are his daughters. It was pleaded that Dula Singh had executed a valid Will dated August 18, 1957 in their favour as also Mukhtiar Singh and Didar Singh sons of Rattan Singh in respect of the suit land and that the same was sold to Tara Singh and Hazara Singh predecessors in interest of respondent Nos. 13 to 18. The plea that the suit was barred by time was also taken. Respondent Nos. 13 to 18 in their written statement pleaded that they were bona fide purchaser for value and consideration and without notice of the rights of the plaintiffs. On the pleadings of the parties, the following issues were framed:

Whether the suit is within limitation? OPP

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether Dula Singh deceased executed any valid Will in favour of the defendant Nos. 3, 4, 5, 6 and 7 on 28.6.1987? OPD

If issue No. 3 is not proved, whether the plaintiffs are entitled to one-seventh share of the suit property? OPP

4-A. Whether the defendant Nos. 13 to 18 are the bonafide purchasers of the sit land? If so its effect? OPD

Relief.

The trial court by judgment and decree dated 5th of February 1977, decreed the suit of the plaintiffs for possession of 1/7th share of the suit land. Aggrieved by the judgment and decree of the trial court. Bhagwan Singh and Dial Singh, the present appellants filed an appeal which was ultimately decided by the learned Additional District Judge Amritsar, who by his judgment and decree dated December 10, 1979, dismissed the appeal with costs and consequently affirmed the decree passed by the trial court.

Bhagwan Singh and Dial Singh, feeling dissatisfied with the judgment and decree of the court below, filed the present appeal.

After hearing learned Counsel for the parties and perusing the record. I find that there is no merit in this appeal and the same deserves to be dismissed. Learned Counsel for the appellants vehemently contended that the court below have erred in coming to the conclusion that Dula Singh never executed any Will in favour of defendant Nos. 3,4,6 and 7. Suffice it to say that neither the original Will was produced in court non the loss thereof was proved. The Will alleged to have been executed on August 18, 1957 marked ''C by the trial court was registered after a period of more than three years of its execution and the death of testator-Dula Singh. No occasion was provided by the contesting defendants to the plaintiffs to get compared the alleged thumb impression of Dula Singh with the admitted or his standard thumb impression. The Original Will marked ''C was even not produced before the Revenue Officer who sanctioned the mutation of the suit land in favour of the appellants on the basic of the alleged Will. I have gone through the Will itself and the language thereof clearly leads to the conclusion that it was scribed by a professional deed writer, but that is not so. It was scribed by Pritam Singh, DW4 who is not a professional deed writer. There are other suspicious circumstances casting doubt on the validity of the Will as the testator, admittedly died in about 8days time of the execution of the Will and the Will was registered after three years. No occasion is provided by the evidence on record to interfere with the finding recorded by the Courts below holding that the Will was a fabricated and forged document. The finding of the courts below regarding the Will is thus affirmed.

Learned Counsel for the appellants further argued that even otherwise the appellants were proved to be the owners by adverse possession. This contention again has no merit. Though there is no specific issue and regards adverse possession yet the matter was discussed under Issue No. 1. The Courts below have come to the conclusion that suit is within limitation. The only contention of the learned Counsel for the appellant is that Dula Singh having died on August 26, 1957, the appellants had entered into possession of suit land as owners to the exclusion of the plaintiffs on the basis of Will marked ''C'' and, therefore, their adverse possession, against the plaintiffs started on that date. The present suit having been brought after a period of 17 years is clearly barred by time. The contention is without any merit. The jamabandi of the land in suit continue to show Dula Singh to be in possession of the suit land till the year 1972-73 mutation thereof was sanctioned in favour of the appropriate and few others on May 14, 1974. For the trust time of suit land was shown to be in possession of the appellants in 1974 and thus the suit could be filed by the plaintiffs within a period of 12 years from the date when the possession of the appellants became adverse to them. It is only on the sanctioning of the mutation that the rights of the plaintiffs were effected and thus the suit brought by them in the year 1974 itself is well within time and it cannot be held, by any stretch of imagination, that the appellants had become owner of the suit land by adverse possession. The third contention of the learned Counsel that necessary parties were not impleaded is again without merit as the legal representative of defendant Nos. 13 to 18 were impleaded as parties to the suit after an objection had been taken in the written statement on April 22, 1976. The last contention of the learned Counsel that the daughters of Gurmukh Singh having already litigation in respect of the Estate of Dula Singh, the suit by the present plaintiffs was incompetent is again with merit. Ex. D1, on the face of it is a collusive judgment. The present plaintiffs were not parties to it and the judgment was passed on the basis of concession made by the Mukhtar-i-am of Uttam Kaur and Mohinder Kaur. It is not at all shown as to how this judgment will bind the present plaintiffs. In my view, this has not even the remotest connection with the present suit. In view of the above discussion, the appeal fails and is dismissed. There will be no order as to costs.