Mahesh Grover, J.:-This Regular Second Appeal is directed against judgments and decrees dated 12.10.2002 and 26.5.2005 passed respectively by the Civil Judge (Junior Division), Nawanshahar (hereinafter described as ‘the trial Court’) and Additional District Judge, Nawanshahar (referred to hereinafter as ‘the First Appellate Court’) whereby the suit filed by the plaintiff-respondent no.1 was decreed and the appeal of defendant no.1-appellant was dismissed.

2. Respondent no.1, who is father of the appellant filed a suit for declaration to the effect that he is owner and in joint possession of the land fully described in the head notes (a) to (c) to the extent of ½ share, whereas he is owner and in exclusive possession of the land detailed in head note (d) of the plaint and that the decree dated 1.6.1994 passed in Civil Suit No.143 of 1994 is null & void, inoperative, illegal, not binding on him and is the result of fraudulent means. A consequential relief of permanent injunction was also sought restraining the appellant from dispossessing him from the suit land forcibly or alienating the same. Alternatively a decree for possession of the suit land was also prayed.

3. It was pleaded by respondent no.1 that the aforesaid decree was the result of fraud and impersonation; that a week prior to the filing of the suit, he had discovered that mutation no.1033 had been sanctioned in favour of the appellant qua the disputed land on the basis of that decree and that he had never appeared in the Court. It was further pleaded that he was an old person of more than 80 years and was having no male child and that he was residing with his brother Gurbachan Singh and nephews, namely, Sukhdev Singh and Parvinder Singh, who were cultivating the suit land jointly. Respondent no.1 had averred that the appellant had mortgaged the suit land in favour of respondent no.3-Punjab National Bank and that such mortgage was also not binding on his rights.

4. Upon notice, the appellant had appeared and filed her written statement controverting the averments made in the plaint. It was pleaded by her that the decree dated 1.6.1994 was validly passed after respondent no.1 had himself appeared in the Court and got recorded his statement to that effect. It was further pleaded that she was the only legal heir of respondent no.1 and was residing with him in the same house since her birth and after her marriage as well. She averred that in fact, the suit land had been given to her in a family settlement which took place on 1.6.1991 and even prior to the passing of the decree in question, she was in possession of it. The instant suit was stated to have been filed fraudulently at the instance of respondent no.2 and his sons because they had designs to grab the land in dispute and proceedings under Section 145 of the Cr.P.C. were initiated and the appellant was held to be owner in possession thereof. The mortgage was also pleaded to be legal and valid.

5. In his separate written statement, respondent no.2 had admitted that respondent no.1 was owner of the suit land and that the same had been leased out to him and he was in exclusive cultivating possession thereof.

6. Respondent no.3, in its written statement, denied that respondent no.1 was owner in possession of the suit land. It asserted that the appellant being the exclusive owner and in possession, mortgaged the suit land measuring 31 kanals 6 marlas in its favour vide registered deed dated 19.9.1994 for Rs.1,35,000/- which loan was meant for purchase of a tractor. The rest of the allegations were denied for want of knowledge.

7. It may be mentioned here that the suit against Ujagar Singh respondent no.4, who was impleaded as defendant no.4, was withdrawn on 7.11.1996.

8. On the basis of the pleadings of the parties, the trial Court framed the following issues:-

1. Whether the plaintiff is owner in joint possession to the extent of 1/.2 share out of the suit land fully mentioned in the head note of plaint?OPP

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