IMPORTANT POINT
Appeal--Limitation--Once the appeal was filed within a period of limitation, along with an application for exemption to file certified copy, then it was incumbent, upon the court to decide the said application
Joint Hindu Property--Merely because Pedigree table was pleaded in the plaint, could not lead to a conclusion that the plaintiff/respondent had admitted the nature of the property to be joint Hindu coparcenary property

Vinod K.Sharma, J.

1 This Appeal By The Defendant/appellant Is Directed Against The judgment and decree dated 11.8.1984, passed by the learned Courts below vide which suit for possession filed by the plaintiff/respondent No. 1 was ordered to be decreed.

2 Plaintiff filed suit on the pleadings, that Jaimal Singh had three sons, namely Sardar Kehar Singh, Sardar Sucha Singh and Sardar Puran Singh. Plaintiff Joginder Singh was son of Kehar Singh, whereas defendant/appellant though son of Kehar Singh was said to have been adopted by Sucha Singh. It was the case set up by the plaintiff that Sucha Singh, brother of Kehar Singh did not marry but he adopted Khidmat Singh appellant vide adoption deed dated 15.4.1963, during his life time. Sucha Singh died on 5.8.1978. Kehar Singh, father of the plaintiff Joginder Singh had one third share in the suit land as detailed in the head-note of the plaint. He executed a Will dated 16.10.1969 in favour of the plaintiff, in lieu of services rendered by him. Kehar Singh died on 24.1.1970 and the plaintiff, therefore, became exclusive owner of the suit property, both immovable and movable left by him.

3 It was further pleaded, that defendant No. 1 after few days of the death of Kehar Singh orally exchanged the suit land in lieu of 8 bighas of land in village Mohi, which was in the name of his wife. After the exchange, Khidmat Singh appellant cultivated the land of village Dhallian and plaintiff cultivated the land in village Mohi. In the month of March, 1977 the appellant/defendant No. 1, took possession of land of village Mohi from the plaintiff. When inquiries were made by the plaintiff/respondent, it came to his knowledge that appellant got mutation sanctioned in his favour of share of the suit land. He further mortgaged his share, with defendant Nos.2 & 3. When plaintiff/respondent demanded the possession of land of village Dhalian from the defendants, defendant No. 1 delivered possession of half share of land, which was in his name but refused to deliver the possession of remaining half share. Mutation in favour of the defendant/appellant was claimed to be illegal and not binding on the rights of the plaintiff/respondent. Defendant/appellant had also illegally mortgaged 1/6th share in the suit land, who forcibly took possession of the suit land about two years prior to the filing of the suit. Plaintiff/respondent sought possession on the basis of the Will and in view of adoption of defendant No. 1.

4 Suit was contested. Defendant No. 2 appeared but later on was proceeded against ex parte.

5 Appellant/defendant No. 1 took preliminary objection that suit of the plaintiff was barred by principles of res judicata, and also that it was barred, under Order 2 Rule 2 of the Code of Civil Procedure. Locus standi of the plaintiff to file suit was also challenged. However, Pedigree table was admitted and also the fact that Sucha Singh was not married. The appellant denied the adoption of Khidmat Singh by Sucha Singh, and the adoption deed was said to be, not binding on the rights of the appellant. Appellant claimed inheritance of his share of property from Kehar Singh. It was also the pleaded case of the defendant/appellant that Sucha Singh had executed a registered gift deed regarding his property, in favour of Shamsher Kaur wife of the appellant. It was admitted that Kehar Singh was owner of 1/3 share of disputed property. Kehar Singh in addition, also owned landed property, i.e. and a house in village Mohi. It was claimed that mutation was wrongly sanctioned in favour of the plaintiff/respondent. Execution of the Will was denied. Will was said to be illegal, void, ineffective, against the rights of the appellant, on the plea that the property in dispute was joint Hindu family coparcenary property and therefore, Will could not be executed qua the coparcenary property. Defendants Nos. 2 & 3 were said to be in possession and it was prayed that the suit be dismissed. In the re-application avermen