Regular Second Appeal No. 3401 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3401 of 2008 Date of Decision: July 01, 2009 Mohinder Singh ...........Appellant Versus Chanan Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.R.K.Battas, Advocate for the Appellant. ** Sabina, J. Chanan Singh and Major Singh had filed a suit for declaration seeking possession in the suit land to the extent of 2/3rd share on account of death of Bhagwan Kaur, their mother, who was owner in possession of the suit land. The case of the plaintiffs was that the parties were legal heirs of Bhagwan Kaur, deceased. Plaintiffs had 4/15 share in the suit land. Defendant No.1- Mohinder Singh had got sanctioned mutation No.2468 of the estate of Bhagwan Kaur, deceased. Plaintiffs also averred that earlier a litigation had taken place between the parties regarding the suit land regarding inheritance of deceased-Bhagwan Kaur with regard to the land situated in village Tollawal and the same was decided against defendant No.1-Mohinder Singh. Defendant No.1-Mohinder Singh, on the other hand, in the written statement averred that the plaintiffs were not the legal heirs of the Regular Second Appeal No. 3401 of 2008 2 deceased. He used to serve Bhagwan Kaur, deceased, his mother during her life time. Bhagwan Kaur, deceased was pleased with the services of defendant No.1 and had executed a registered WILL in his favour and on the basis of the same, mutation had been sanctioned. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether plaintiffs are owners in possession of suit land to the extent of 4/15 share? OPP 2. Whether plaintiffs are entitled to declaration as prayed for?OPP 3. Whether deceased Bhagwan Kaur had executed a legal and valid Will dated 26.3.1996 in favour of Mohinder Singh. If so its effect?OPD 4. Whether Will dated 26.3.1996 is a forged and fabricated document?OPD 5. Relief.” Learned trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 7.6.2006. Aggrieved by the same, plaintiffs preferred an appeal and vide judgment and decree dated 8.1.2008, the learned District and Sessions Judge, Sangrur allowed the appeal and decreed the suit of the plaintiffs. Hence, the present appeal. After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Parties are related to each other being brothers. Admittedly, the property in question was owned and possessed by Bhagwan Kaur. Plaintiffs as well as defendants are sons of Bhagwan Kaur. Defendant Regular Second Appeal No. 3401 of 2008 3 No.1-Mohinder Singh has placed reliance on WILL dated 26.3.1996 alleged to have been executed by Bhagwan Kaur since deceased. Mohinder Singh- defendant No.1 had earlier filed a suit claiming himself to be owner in possession of 1/4th share in the land measuring 64 kanals 5 marlas situated in village Tollawal against the plaintiffs on the basis of WILL dated 26.3.1996. Mohinder Singh-defendant No.1, however, failed to lead any evidence to prove the execution of the WILL and as such, the suit filed by Mohinder Singh-defendant No.1 was dismissed vide judgment dated 4.5.1998 (Exhibit P3). In these circumstances, since defendant No.1- Mohinder Singh had failed to prove the WILL, now set up by him, hence, defendant No.1-Mohinder Singh could not base his claim on the suit property on the basis of WILL dated 26.3.1996. The learned District Judge rightly held that the defendant No.1-Mohinder Singh could not be allowed to re-agitate the issue regarding the execution of the WILL as he has failed to prove the due execution of the same in a suit filed by him. The learned District Judge had, thus, rightly decreed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 01, 2009 arya Regular Second Appeal No. 3401 of 2008 4 Regular Second Appeal No. 3401 of 2008 5