JUDGMENT :

VIKAS BAHL, J.

1. Challenge in the present regular second appeal is to the judgment of the Ist Appellate Court dated 21.08.1991 vide which the appeal filed by defendants no.2, 3, 4, 5, 9 and 10 has been allowed and the suit filed by the plaintiff Lal Chand was dismissed. The present appeal has been filed by the plaintiff Lal Chand under Section 41 of the Punjab Courts Act, 1918 and is being pursued by his LRs.

ARGUMENTS ON BEHALF OF THE APPELLANT/PLAINTIFF

2. Learned senior counsel for the appellant/plaintiff has submitted that in the present case the plaintiff had filed a suit for declaration to the effect that the plaintiff is owner in possession of the suit land measuring 35 kanals 15 marlas situated in village Dulheri, Tehsil and District Bhiwani and that the mutation of inheritance no.921 dated 15.06.1980 in favour of defendants no.1 to 5 was illegal and against law. It is submitted that it was the case of the plaintiff that he was the son of Chunia and Mohra and was also the brother of Girdhari. It is further submitted that the said Girdhari had died issueless and intestate and thus, the plaintiff being the only surviving son of Chunia was entitled to the suit land which prior to the death of Girdhari was in the name of Girdhari. It is argued that after the death of Chunia, the plaintiff was entitled to half share of the estate of Chunia and Girdhari was entitled to the other half of the said estate. It is submitted that since the plaintiff was in the womb of his mother Mohra, when, Chunia died on 15.04.1928, thus, the suit land was shown only in the name of Girdhari and that after the death of Girdhari, it is the plaintiff who is entitled to the land which was shown in the name of Girdhari being his brother and being the only surviving son of Chunia.

3. Learned senior counsel for the plaintiff has submitted that in the present case the fact that the plaintiff as well as Girdhari were sons of Mohra is not disputed and has been found as a matter of fact by the trial Court as well as by the Ist Appellate Court. It is further submitted that it is also not in dispute that Girdhari was admittedly the son of Chunia and Mohra, and thus, it is apparent that it is not in dispute that the mother of Girdhari and the plaintiff was the same person i.e., Mohra. It is argued that even the fact that Mohra was married to Chunia is not disputed and thus, since there is a presumption of legitimacy in favour of the plaintiff, it was for the defendant to show that the plaintiff was not the son of Chunia. It is argued that it was the specific case of the defendants in the written statement that the said Mohra had performed kareva marriage with Kirpa and that the present plaintiff was born from the marriage of Kirpa and Mohra. It is submitted that no such Kareva marriage between Kirpa and Mohra had been proved and neither the trial Court nor the Ist Appellate Court has given any finding in favour of the defendants with respect to the said alleged Kareva marriage.

4. It is further submitted that it is proved on record that PW-3 Naraini was the widow of Kirpa and thus it is impossible to believe that the said Kirpa could have had two wives living at the same time. Learned senior counsel for the appellant has further submitted that the said Kirpa had died and after his death, mutation no.665 dated 20.08.1965 was entered into which has been duly exhibited as Ex.P11 and a perusal of the same would show that the property of Kirpa had been inherited by his widow Naraini, daughter Devki Chandro and three sons Hardeva, Om Parkash and Jai Singh. It is submitted that in spite of the fact that Mohra was alive at the time of death of Kirpa, yet, neither any property has been given to said Mohra nor any property has been given to the plaintiff which also clearly establishes that neither Mohra was the wife of Kirpa nor the plaintiff was the son of Kirpa. It is submitted that the said mutation was entered into in the year 1965 which is prior to the filin