JUDGMENT :

Instant Regular Second Appeal, under Section 100 of the Code of Civil Procedure, filed by the appellant-defendant (hereinafter referred to as the ‘defendant’) lays challenge to the judgment and decree dated 28.05.2012 passed by learned District Judge, Mandi, District Mandi, Himachal Pradesh in Civil Appeal No.52 of 2010, reversing the judgment and decree dated 25.05.2010 passed by learned Civil Judge (Senior Division), Sarkaghat, District Mandi, Himachal Pradesh in case No.113 of 2000, whereby suit for declaration with consequential relief of injunction having been filed by the respondents-plaintiffs (hereinafter referred to as the ‘plaintiffs’) was dismissed.

2. For having bird’s eye view, certain undisputed facts, as emerged from the record, are that the plaintiffs filed suit for declaration with consequential relief of injunction against the defendant averring therein that land denoted by Khewat Khatauni No. 213/248, comprising of Khasra No. 907, 970, 984, 985, 986, 1055/991, 1059/992 Kita 7, measuring 0-13-24 hectare is recorded in the ownership and possession of deceased Fithu and the land denoted by Khewat Khatauni No. 214/249, Khasra No. 971, 971/ and 983, Kita 3, measuring 0-06-39 Hectare is recorded in the ownership of deceased Fithu alongwith other co-sharers and Fithu had got 1/6th share i.e. 0-01-06 Hectares, situate in Village Khanot/491 and the land comprised in Khewat Khatauni No. 134/147 Khasra No.242, 465 and 510 Kita 3, measuring 0-13-51 Hectare, situate in Village Hariyan/493 (hereinafter referred to as the ‘suit land’) is recorded in the ownership and possession of deceased Fithu.

3. Plaintiffs claimed that they are widow and daughter of deceased Fithu and deceased was looked after and maintained by them and after his death, they performed his last rites. Plaintiffs also claimed that the suit land is being cultivated by them and one Shri Mohan Lal. Plaintiffs further claimed that the defendant has set up a false and fictitious Will, which was never executed by the deceased. Plaintiffs averred in the plaint that under the garb of Will, the defendant has threatened to take forcible possession of the suit land. The mutation of the suit land is yet to be attested and they being sole heirs of the deceased Fithu alias Mahantu have right of maintenance out of the property of the deceased Fithu. Plaintiffs claimed that deceased Fithu was old and illiterate person and was unable to understand the worldly affairs and as such, the Will set up by the defendant is a false and fictitious document. Plaintiffs also claimed that the defendant in collusion with the witnesses set up a false Will, which was never executed by the deceased. It has further been averred in the plaint that the plaintiffs reported the fact of death of Fithu to the Patwari, who in turn told the plaintiffs that the defendant has set up a Will in his favour. Besides above, the plaintiffs also claimed that deceased Fithu had two wives; one Smt. Kalasi and another Smt. Jugli Devi, (plaintiff No.1) and daughter was born from their union namely; Satya Devi (plaintiff No.2).

4. The aforesaid claim made by the plaintiffs came to be resisted and contested on behalf of the defendant by filing written statement in which he has taken preliminary objections qua cause of action and locus standi. It has been specifically stated by the defendant that plaintiff No.1 is neither the wife nor plaintiff No.2 is daughter of deceased Fithu @ Mahantu. Defendant claimed before the Court below that he alongwith his family used to cultivate the land of deceased Fithu @ Mahantu and rendered all types of services, whereas, plaintiff No.1 Smt. Jugli Devi remained with deceased Fithu for some time and thereafter left his house and gone with some other person and residing at Sundernagar for the last 40 years. Defendant also claimed that plaintiff No.2 is not the daughter of Fithu @ Mahantu and as such, not entitled to property of deceased. It is further averred by the defend