Judgment

Mrs. Meenakshi I. Mehta, J.

By way of the instant Regular Second Appeal, the plaintiff- appellant (here-in-after to be referred as ‘the plaintiff) has assailed the judgment and decree dated 16.10.1987 passed by learned Sub-Judge 1st Class, Palwal (for short ‘the trial Court’), whereby the Civil Suit bearing No.235 of 1985, filed by her for seeking the decree for declaration to the effect that the decree dated 03.10.1983, passed in Civil Suit No.571 of 1983 as well as Mutation No.2448, as sanctioned on the basis thereof, are liable to be set-aside and that the respondent-defendant No.1 is still the owner in possession of the suit land, has been dismissed and she has also laid challenge to the judgment and decree dated 07.04.1989, handed down by learned Additional District Judge, Faridabad (for short ‘the Lower Appellate Court’), dismissing the appeal, as preferred by her against the above-mentioned judgment and decree dated 16.10.1987.

2. Shorn and short of unnecessary details, the facts, culminating in the filing of the present appeal, are that the plaintiff filed the said Civil Suit No.235 against the respondents-defendants (here-in-after to be referred as ‘the defendants’), while averring that defendant No.1, her mother, was the owner in possession of 2/3 share in the land measuring 99 Kanals 03 Marlas (for short ‘the suit land’) as detailed in para No.2 in the plaint and she (defendant No.1) executed a ‘Will’ dated 18.07.1977 in her (plaintiffs) favour in respect of the said land but thereafter, defendants No.2 to 5 filed the said Civil Suit No.571 of 1983 against defendant No.1 and fraudulently obtained the decree dated 03.10.1983 therein, in their favour qua the suit land whereas defendant No.1 had neither thumb-marked the alleged written statement nor the statement, as stated to have been recorded in the Court in the afore-said Suit and in case, the same were found to have been thumb- marked by her, then her thumb-impressions were procured by defendants No.2 to 5 by playing fraud with and mis-representing the facts to her as she was an old illiterate lady and could not have understood the implications of thumb-marking any document.

3. Defendant No.1 filed her written statement controverting the averments of the plaintiff therein, inter-alia, on the grounds of locus-standi, maintainability and cause of action. On merits, she asserted that after the execution of the said ‘Will’ by her in favour of the plaintiff, she (plaintiff) became greedy and refused to serve her (defendant No.1) in her old age and defendants No.2 to 5 had been serving her since long and therefore, she had suffered the decree dated 03.10.1983 in their favour, out of her own free will and without any influence or pressure.

4. In their joint written statement, defendants No.2 to 5 also contested the claim of the plaintiff, primarily, on the ground of its maintainability. On merits, they pleaded that defendant No.1, being the full-fledged owner of the suit land, had suffered the decree dated 03.10.1983 in Civil Suit No.571 of 1983 in their favour as they were the collaterals of her husband and a family settlement had been arrived at between them to rule out the eventuality of any litigation and to restore the peace in the family and the suit land had fallen to their share in pursuance of this settlement and thus, they had become the owners of the said land and were in possession thereof accordingly.

5. The plaintiff filed her replications and then, the parties were put to the trial by framing the issues. After appreciating and