Romesh Verma, Judge.

The present petition arises out of the order as passed by learned Senior Civil Judge, Court No.II, Shimla, H.P. dated 05.01.2023, whereby the application filed by the petitioner/defendant under Order 14, Rule 2 read with Order 7 Rules 10 and 11(b) &d(c) of the CPC was rejected.

2. The brief facts of the case are that the plaintiffs/respondents have filed a suit for declaration to the effect that Will No.38, dated 30.06.1989, of land comprised in Khata/Khatauni No. 2/4, Khasra No. 505, measuring 10-6 bigha and Khasra No.576, measuring 1-19 bigha, total 12-5 bigha situated at Mohal Mohari, Tehsil and District Shimla, H.P. in favour of the defendant is illegal, null and void and further the declaration was sought that the mutation No.467, dated 18.03.2010 attested in favour of the defendant on the basis of Will No.38, dated 30.06.1989 is also illegal and wrong. Further redemption of mortgage created vide mutation No.200, dated 24.09.1989 and possession of the suit land along with permanent prohibitory injunction was sought by the plaintiffs against the defendant.

3. It was averred in the plaint that plaintiffs are sons and daughters of late Smt. Leela Devi wife of late Shri Shalig Ram. Smt. Devki was the wife of late Shri Jeet Ram, who had expired prior to her husband on 20.07.2009. Smt. Leela Devi had expired on 23.08.2010. Smt. Leela Devi had every right to inherit the property of her father late Sh. Jeet Ram being his sole natural legal heir. Plaintiffs are the legal heirs of late Smt. Leela Devi. After the death of Smt. Leela Devi, her estate devolved upon the plaintiffs being her natural legal heirs. It is averred that after the death of late Shri Jeet Ram, mutation No. 467, dated 18.03.2010 was attested in favour of Smt. Leela Devi. She was under a bonafide belief that the mutation of whole of the property of her father had been attested in her favour and she was made confident by the concerned revenue officer that the whole of the property will go to Leela Devi through mutation No. 467.

4. As per the plaintiffs, the deceased Jeet Ram never executed Will No.38, dated 30.06.1989 in favour of the defendant. The said document is a forged document and is result of manipulation and fraud. Defendant was in possession of the suit land on the basis of mortgage. Late Sh. Jeet Ram had mortgaged the suit land in favour of the defendant vide mutation No.200, dated 24.09.1989 for a sum of Rs.13,000/-. Smt. Leela Devi and thereafter the plaintiff remain under a bonafide belief that the defendant is in possession of the suit land on the basis of mortgage and they had no knowledge regarding the Will. It is further averred that the suit land was mortgaged with possession for a sum of Rs.13,000/- in favour of the defendant as such the possession of the suit land is lying with the defendant, who had driven the profit out of the suit land. It is further averred that the plaintiffs are ready and willing to pay the mortgage amount to the defendant so that possession of the suit land be reverted back to plaintiffs by way of redemption.

5. As per the plaintiffs, the suit is properly valued for the purpose of court fee and jurisdiction. The suit is valued at Rs.300/- for the purpose of court fee and jurisdiction as per the revenue assessed on the suit land. Therefore, the suit was filed claiming the reliefs for declaration, redemption of the mortgaged land and permanent prohibitory injunction against the defendant before the learned trial Court.

6. The suit was contested by the defendant by filing written statement raising various preliminary objections with respect to competence, maintainability, limitation, mis-description etc. On merits, it was averred in the written statement that at the time of attestation of mutation, Smt. Leela Devi had acknowledged the factum of execution of Will dated 30.06.1989 executed by her father late Shri Jeet Ram in favour of the defendant and on the basis of affidavit swo