Will--Suspicious Circumstance--Testator was blind--It was not practically possible for a blind person to reach scribe of will all alone--Will discarded.
Adverse Possession--There cannot be any adverse possession by one co-owner against another co-owner.

Mrs. Daya Chaudhary, J.: - Briefly, the facts of the case as made out in the present appeal, are that plaintiff-Joginder Kaur filed a suit for 1/3rd possession from joint possession, which was decreed vide judgment/decree dated 4.1.1984. Aggrieved by the aforesaid judgment and decree of the trial Court, defendant No.2 filed an appeal before the Additional District Judge, Jalandhar, which was dismissed vide judgment dated 27.2.1987.

2. After loosing the case before the two Courts below, appellantdefendant No.2 through his LRs has filed the present second appeal to challenge the judgments and decrees passed by both the Courts below.

3. Learned counsel for the appellants submits that both the Courts below have not properly appreciated the evidence available on record. The findings recorded by the trial Court as well as first appellate Court are contrary to the evidence and have been passed without taking into consideration the evidence lead by the appellants. Learned counsel further submits that the appellants have proved on record the Will, which was executed by Mihan Singh. Both the Courts below have not assigned any reason to disbelieve the testimonies of marginal witnesses of the Will. One of the marginal witness was Numberdar of the village for the last about 40 years but still his testimony has not been believed. The appellants by proving the Will on record have become owner of the suit land by way of adverse possession. The suit was filed by respondent No.1 after 15 years of death of Mihan Singh and throughout this period, the appellants were in exclusive possession of the suit land. At the end, learned counsel for the appellant submits that both the Courts below have relied upon irrelevant, inadmissible and untrustworthy evidence lead by respondent No.1 and as such judgments of both the Courts below are liable to be set aside.

4. Service was effected upon respondent No.1 but none has appeared inspite of intimation sent to counsel for respondent No.1.

5. Heard the arguments advanced by learned counsel for the appellants and have also gone through the judgments and decrees passed by both the Courts below and other documents available on the file.

6. The facts relating to filing of suit by respondent No.1-plaintiff and its decreetal as well as dismissal of the appeal filed by the appellants by the lower appellate Court are not disputed.

7. Respondent No.1-Plaintiff-Joginder Kaur filed a suit for 1/3rd possession as per her share, whereas, appellant-defendant No.2 has claimed his right on the basis of unregistered Will. The trial Court has framed the following issues:-

i) Whether the plaintiff is the daughter of Mihan Singh S/o Surajan? OPP.

ii) If issue No.1 is proved, then whether the plaintiff is entitled to joint possession 1/3rd share of the suit land? OPP.

iii)Whether Mihan Singh executed a valid Will in favour of defendant No.2, if so, its effect as alleged in the written statement? OPD.

iv)Whether defendant No.2 has become owner of the suit land by way of adverse possession? OPD.

v) Relief.

8. The findings recorded by the trial Court are reproduced as under:-

“12. No doubt there is statement of one of the marginal witnesses, who has fully stated regarding the execution of this Will, copy of which is Ex. D1 and the original is in the mutation file attached but still it does not stand proved that this is the last testimony deposition of the deceased Mihan Singh. The execution of this document is shrounded in suspicious circumstances and which the statement of the scribe Dharam Pal as well as Maluka defendant No.2 or the attesting witness Umar Singh has not been able to dispel from the mind of the Court. Firstly it is an unregistered document. Although it is nowhere laid down that a Will to be genuine is required to be registered but this fact coupled with the surrounding circumstances makes this document highly doubtful and suspicious in nature. As the plaintiff has been proved to be the daugther of Mihan Singh,