IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 11.03.2025 Paramjit Kaur and another ...Appellant(s)

Vs.

Bua Singh and others ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Vinod Kumar Kaushal, Advocate for the appellant.

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NIDHI GUPTA, J.

The plaintiffs are in second appeal against the concurrent judgments and decrees of the learned Courts below, whereby the suit of the plaintiffs for declaration that the plaintiffs are co-owners/co-sharers of the suit property to the extent of 2/5th share which includes 2 shops on front side, and a vacant open plot at the back of the shops; declaration that the Will dated 17.08.2000 purportedly executed by Joginder Kaur (who is mother of the plaintiffs and defendants No.1 to 3) in favour of defendants No. 1 and 2, is illegal, null and void; and further consequential relief of permanent injunction, has been dismissed by both the Courts below.

2. At the very outset, it may be pointed out that the present appeal is of the year 2019. However, notice has not yet been issued in the same as the matter has been adjourned multiple times either due to non-

appearance of, or at request of learned counsel for the appellants.

3. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellants are the ‘plaintiffs’; and the respondents are the ‘defendants’.

4. The case as put forth by the appellants/plaintiffs in the plaint was that Joginder Kaur/mother of the plaintiffs and defendants No.1 to 3, was married to their father, Piara Singh. 5 children were born out of their wedlock i.e. Bua Singh/defendant No.1; Kuldeep Singh/defendant No.2; Paramjit Kaur/plaintiff No.1; Amarjit Kaur/plaintiff No.2; and Ram Lubhai/defendant No.3. After the death of Piara Singh, the suit property was owned by Joginder Kaur. It is averred in the plaint that upon her death, the suit property was inherited equally by all the 5 legal heirs to the extent of 1/5th share each; and that the possession of the defendants No.1 and 2 over the suit property, is only as co-sharers. Accordingly, the plaintiffs demanded that their rightful share be given to them. However, the defendants No.1 and 2 refused to do so, claiming ownership over the suit property based on Will dated 17.08.2000 allegedly executed by Joginder Kaur. It was also pleaded in the plaint that the alleged Will dated 17.08.2000 is forged and fabricated. Hence, the plaintiffs filed the present suit.

5. Upon notice, the defendants No.1 to 3 filed written statement contesting the suit by stating that the Will dated 17.08.2000 is a registered Will and that the plaintiff No.1 and defendant No.3 are the attesting witnesses of the said registered Will. It was further averred by defendants No.1 to 3 that Joginder Kaur had expired on 24.12.2014 and the said Will was never challenged by the plaintiffs during her lifetime and present suit was filed thereafter, only on 22.04.2015. Accordingly, dismissal of the suit was prayed for.

6. Defendant No.4 is the subsequent purchaser of the suit property, who filed separate written statement stating that he has no concern with the suit property. It is submitted that dispute was between the family members. Subsequently, defendant No.4 was proceed ex parte.

7. From the pleadings of the parties, following issues were framed:-

1. Whether plaintiff is entitled to relief of Declaration as prayed for? OPP.

2. Whether plaintiff is entitled to relief of Permanent Injunction as prayed for? OPP.

3. Whether Joginder Kaur, executed Will dated 17.8.2000 ?

OPD.

4. Whether the suit of the plaintiff is not maintainable? OPD.

5. Relief.”

8. Upon appraisal of the pleadings and the evidence led by the parties, the ld. trial Court decided issues No. 1 to 3 in favour of the defendants and against the plaintiffs; issue No.4 in favour of the plaintiffs and against the defendants; and accordingly vide judgment and decree dated 17.08.2017, the learned trial Court dismissed the suit of the pl