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Present : Mr. Kanwaljit Singh, Senior Advocate with Ms. Gurmehr Kaur, Advocate, for the appellant. Mr. Ashish Aggarwal, Senior Advocate with Mr. Gaurav Arora, Advocate for the respondents/caveators.

*** VIKRAM AGGARWAL, J

1. Defendant Satish Sharma is in second appeal against the concurrent findings recorded by both the Courts below.

2. A suit for possession by way of partition with consequential relief of permanent injunction was filed by the plaintiffs-respondents which came to be decreed by the Court of Civil Judge (Junior Division), Karnal vide judgment and decree dated 17.11.2015. The appeal preferred by the defendant-appellant against the said decision was dismissed by the Court of Additional District Judge, Karnal vide judgment and decree dated 23.01.2023, 1 of 27 Neutral Citation No:=2023:PHHC:158431 RSA-1761-2023 (O&M) -2- 2023:PHHC:158431 leading to the filing of the present second appeal. (For the sake of convenience, parties shall be referred to as per their original status).

3. One Pandit Desraj Mishra, who was a resident of Karnal, expired in 1974. He was survived by his wife Smt. Kailashwanti alias Kailashwati. The couple had three children namely Krishan Gopaul (son) & Dhiraj Bhanot and Satish Sharma (daughters). Smt. Kailashwanti was the owner of a house bearing No.559, situated in Model Town, Karnal (fully described in the plaint) (hereinafter referred to as 'the disputed house'). It is this house which is the bone of contention between the siblings. 4 (i). Plaintiffs Krishan Gopaul and Dhiraj Bhanot (both have expired and are now represented by their legal representatives) filed a suit for possession by way of partition with consequential relief of permanent injunction. The case set up was that Smt. Kailashwanti was the owner of the disputed house. Smt. Kailashwanti was stated to have expired intestate on 26.10.1980 after which the parties to the suit became owners in possession of the disputed house in equal shares. It was averred that the disputed house was a source of constant dispute between the parties and despite various efforts, no headway could be arrived at as the defendant, on account of her adamant stand did not want to part with the possession of the disputed house and wanted to usurp the share of the plaintiffs. It was averred that she intended to alienate the disputed house and since she did not agree to the proposal of dividing the disputed house in equal shares, the suit was instituted. A preliminary decree of possession by way of partition was prayed for. Consequential relief of permanent injunction restraining the defendant from 2 of 27 Neutral Citation No:=2023:PHHC:158431 RSA-1761-2023 (O&M) -3- 2023:PHHC:158431 alienating any specific portion of the disputed house in excess of her share and also from changing the nature of the same was sought. 4(ii) The suit was opposed by the defendant. In the written statement, certain preliminary objections with regard to maintainability, locus standi, estoppel, the suit not being valued properly for the purposes of Court fee and jurisdiction etc. were raised. It was averred that a Will dated 31.12.1977 had been executed by Smt. Kailashwanti in favour of the defendant and that the defendant had been residing in the disputed house for the last 33 years. On merits, the relationship between the parties and the factum of Smt. Kailashwanti having expired on 26.10.1980 and she being the owner of the disputed house was admitted. It was averred that the defendant had served Smt. Kailashwanti in her old age and she had been residing with the defendant since 1977 whereas the plaintiffs had not served Smt. Kailashwanti in her old age. On account of the service rendered by the defendant to Smt. Kailashwanti, she executed a Will dated 31.12.1977 in favour of the defendant.

3 of 27 Neutral Citation No:=2023:PHHC:158431 RSA-1761-2023 (O&M) -4- 2023:PHHC:158431 4(iv) In the replication, the averments made in the written statement were denied and those made in the plaint were reiterated. With regard to the Will, it was averred that no such Will had been executed by Smt. Kailashwanti. It was averred that Smt. Kailashwanti had expired in 1980 and no mention of the Will had been made by the defendant till the filing of the written statement i.e. till 33 years. It was also averred that in the written statement, no details of the Will were given and even in the reply to the application moved by the plaintiffs under Order 8 Rule 1-A CPC, it was averred that the defendant had tried her best to locate the alleged Will but was not able to locate the same and that she would produce the Will before the Court as and when she located it. Subsequently, the written statement was amended and details of the Will were incorporated. 4(v) From the pleadings of the parties, the trial Court framed the following issues for adjudication:-

6(ii). Learned Senior counsel assailed the findings of the Courts below stating that both the Courts had wrongly come to the conclusion that the Will was shrouded by suspicious circumstances. It was submitted that the Will was duly in the knowledge of the plaintiffs and the defendant had been residing in the disputed house for 33 years without any kind of objection from the plaintiffs. Learned Senior Counsel submitted that this in itself would show that Smt. Kailashwanti intended to grant the rights qua the disputed house in favour of the defendant who had served her in her old age. In support of his contentions, learned Senior counsel placed reliance upon the 5 of 27 Neutral Citation No:=2023:PHHC:158431 RSA-1761-2023 (O&M) -6- 2023:PHHC:158431 judgments of Hon'ble Supreme Court of India in Mahesh Kumar (Dead) by L.Rs. Versus Vinod Kumar & Ors. 2012 (2) Civil Court Cases 517 (S.C.), Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors. 2014 (4) Civil Court Cases 758 (S.C.), judgment of Delhi High Court in Rajindra Motwani Versus State & Ors. 2014 (3) Civil Court Cases 077 (Delhi) as well as the judgments of Coordinate Benches of this Court in Ram Chand Versus Udai Singh alias Daya Ram & Ors. 2012 (3) Civil Court Cases 559 (P&H), Raj Kumar & Ors. Versus Hari Chand (dead) through his LRs. & Ors. 2014 (Suppl.) Civil Court Cases 799 (P&H), Pratibha and another versus Nandi Devi and others, in RSA No.1184 of 2016, decided on 27.11.2018.