JUDGMENT

GANGULY, J

1. This appeal is directed against the judgment and order dated 26.08.2002 of the Punjab and Haryana High Court in Regular Second Appeal No.1806 of 2000. By the judgment under appeal, the Hon'ble High Court reversed the judgment and decree of the Court below and held that the suit for declaration that the plaintiff is the owner in possession of land measuring 16 kanals situated in village Ajnoha, is not maintainable. The plaintiff is in appeal before this Court.

2. The material facts of the case are as under. Labhu, an agriculturist of village Sarhola Mundia, Tehsil & District Jalandhar, Punjab had three sons, namely, Khusi Ram, Raghubir Singh and Kashmir Singh and a daughter called Pritam Kaur. The shares of the sons were partitioned by the Revenue Authorities as early as on 30.4.1990 and share of Khushi Ram was separated from Raghubir Singh each getting 16 kanals. Khushi Ram executed a Will in favour of Gian Kaur and appointed her as his Mukhtiar-e-am. Subsequently, relations between them became strained and he cancelled his Will and his Power of Attorney.

3. The appellant is daughter of Pritam Kaur and Khushi Ram was living with Pritam Kaur in her house and Pritam Kaur was serving him. Both Gian Kaur and Khushi Ram opened a joint account in a Bank and out of love and affection Khushi Ram subsequently executed a Will dated 12.4.1990 in favour of the appellant-plaintiff. Under these circumstances, the appellant claimed that she is in actual physical possession of the suit land.

4. Even after a compromise was arrived at between the parties on 2.10.1991, the defendant brought a suit for declaration challenging the Will. That suit was withdrawn on 1.12.1993 without any permission of the Court to file a fresh a suit. After the withdrawal of the aforesaid suit, the filing of the present suit for declaration and permanent injunction became necessary as the defendant threatened to dispossess the plaintiff from the suit property.

5. Before the trial Court, the stand of the defendant was that the property is a Joint Hindu Family property and the plaintiff has no cause of action to file the suit. It was also the contention of the defendant that Khushi Ram was a saintly person and wanted to donate land to a religious institution. The relationship between Khushi Ram and the plaintiff was admitted but the fact of opening a joint bank account with the plaintiff was denied.

6. The trial Court framed about eight issues in the matter. Those issues are as follows:

"1. Whether Khushi Ram has executed any will dated 12.4.1990? OPP

2. Whether the Plaintiff is owner in possession of the Suit land? OPP

3. Whether the Plaintiff is entitled to the declaration as prayed for? OPP