Hemant Gupta, J.
1. The defendants-Vendees from Mohinder Kaur, are in second appeal, aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration to the effect that the plaintiff along with defendant No. 2 are owners in possession of land measuring 86 kanals 9 marlas; for setting aside undated will allegedly executed by Pritam Singh in favour of defendant No. 1 Mohinder Kaur and the decree dated 16.12.1966 (correct date 16.11.1966) based on fraudulent Will, was decreed.
2. One Pritam Singh was owner of land measuring 86 kanals 9 marlas of land situated in village Sargondi, Tehsil Phillaur. He died on 13.5.1965, leaving behind three daughters, namely, Naranjan Kaur, Chhindo, Mohinder Kaur and one son Gurbax Singh. After the death of Pritam Singh, one of his daughters, namely, Mohinder Kaur filed a civil suit alleging Will by Pritam Singh in her favour. On the basis of said Will, a decree declaring Mohinder Kaur as heir of Pritam Singh was passed on 16.11.1966. Thereafter, a rapat Koznamcha was entered by the Patwari on 10.6.1968 and consequently a mutation Exhibit D.10 was entered in the name of Mohinder Kaur on 6.7.1968. Gurbax Singh, son of Pritam Singh died on 16.12.1971, leaving behind his daughter Harjit Kaur and son Harjit Singh. On 13.10.1972, Smt. Naranjan Kaur and Chhindo, daughters of Pritam Singh along with minor son and daughter of Gurbax Singh, filed the present suit for declaration in respect of the ownership rights as well as challenging the decree dated 16.11.1966. In the said suit, a finding has been returned by the learned trial Court that the Will allegedly executed by Pritam Singh, nor the decree dated 16.11.1966 has been produced on record and, therefore, passed a decree sought for by the plaintiffs. The appeal met the same fate and consequently, the defendants are in second appeal.
3. As per the appellants, the following substantial questions of law arise for consideration:
1. Whether the appellant/defendants were bona-fide purchasers keeping in view the fact that Mohinder Kaur had a decree in her favour and she was allowed to hold out that she was the owner of land in dispute?
2. Whether the Courts below adopted a legally correct approach in rejecting document Ex.D9 (copy of entry of register of suits) so as to show that suit filed by Mohinder Kaur against Jhindo, Ninjo and Bakshi was decreed on 16.11.1966?
4. Before proceeding further, it would be relevant to reproduce para 4 of the plaint, wherein, the decree dated 16.11.1966 was sought to be challenged:
That nearly 2-1/2 years back the husband of Defdt. No. 1 began to declare that defdt. No. 1 is the owner of the land in suit on the basis of the decree dated 16.11.66 in her favour on the basis of some will. If this is a fact then the will and the decree both are liable to be set aside on the following grounds:
a. That Shri Pritam Singh deceased did not execute any Will in favour of defdt. No. 1, had it been so, the defdt. No. 1 must have produced it before the revenue officer at the time of sanctioning of the mutation of the estate of Pritam Singh deceased but on the other hand defdt. No. 1 was present before the revenue officer and acquiesced in sanctioning of the mutation in favour of all the heirs of Pritam Singh deceased.
b. That no decree dated 16.11.66 is available and the original will on the basis of which that decree is alleged to have been passed is not available.
c. That the alleged will is unnatural. Gurbux Singh deceased son of Pritam Singh was loyal to his father and obedient and there is no reason why Gurbux Singh deceased the only son and the other daughters of Pritam Singh should have been deprived of inheritance.
d. That Pritam Singh deceased and his son Gurbux Singh were agriculturist of Jullundur District who followed custom in matters of alienation of ancestral immovable property according to which no one could will away his property to the detriment of other heirs and without their consent.
e. That Shri Gurbux Singh deceased had challenged that alleged will but he died during the pendency of the suit and the minor son Pltff. No. 3 of Gurbux Singh deceased has the right to file this suit.
f. That the land in suit described in the heading of the plaint is ancestral qua the plaintiffs and Pritam Singh deceased. The alleged Will is the outcome of fraud, practised by defdt. No. 1 and her husband. Pritam Singh deceased did not put his thumb impression nor his signatures on the will. The husband of defdt. No. 1 might have got some fictitious mark on the Will and without service of the plaintiff managed to get a decree from the court of Sub Judge Phillaur and the pltffs came to know of it nearly two years back when defdt. No. 1 tried to get possession of the land in suit from the pltffs in execution of that decree. The Hon'ble Court was kept in darkness about the facts of the case and misrepresented them.
5. To prove that the decree is liable to be set aside on the grounds aforesaid, the plaintiffs have examined their attorney PW4-Karnail Singh, who has deposed that Pritam Singh died 47 years ago and his wife has also died. He deposed that Pritam Singh has three daughters and also a son, who has died. He has deposed that he was present at the time of sanctioning of mutation regarding inheritance of Pritam Singh and Bakshi husband of Mohinder Kaur, was also present. The mutation was sanctioned at the Canal Rest House, Boparai. He stated that at that time, Will was not produced by Mohinder Kaur or by her husband. He has deposed that Pritam Singh has never executed any Will and his relations with his all children were cordial.
6. On the other hand, the defendants have produced number of witnesses to prove the sale effected by Mohinder Kaur in favour of Bishan and subsequently by Bishan in favour of the present appellants. The defendants have also produced certain other sale deeds effected by Mohinder Kaur in favour of other Vendees. The defendants also produced a certified copy of the Court Register Exhibit D9 to prove that Mohinder Kaur had filed a suit against Bakshi, Nanjo and Chhindo regarding the suit land, which was decreed on 16.11.1966. The defendants also produced Exhibit D10, a copy of the mutation sanctioned on 6.7.1968 on the basis of Rapat Roznamcha dated 10.6.1968. The issues which are material for the decision of the present appeal are Issues No. 3, 4 and 5, which read as under:
3. Whether Pritam Singh executed a valid Will in favour of defendant No. 1? OPD.
4. Whether defendant No. 1 has obtained a decree dated 16.11.1966? OPD.
5. If Issue No. 4 is proved whether the said decree is liable to be set aside? OPP.
7. Learned Counsel for the appellants has vehemently argued that the Courts below have decreed the suit for the reason that the defendants have not produced copy of the decree dated 16.11.1966 and also not proved the loss of the original Court record by summoning the Court officials. It is submitted that such finding is not sustainable in view of the case set up by the plaintiffs. It has been pleaded in para No. 4 of the plaint itself that no decree dated 16.11.1966 is available and the Will on the basis of which, decree is alleged to have been passed is not available. It is argued that once it is pleaded that the original decree is not available, the certified copy of the Court Register Exhibit D.9 is sufficient to prove the factum of the decree having been passed on 16.11.1966 against the plaintiffs. Once, Exhibit D.9 is taken into consideration, the Courts below could not go into the question whether Pritam Singh has executed a valid Will as once a decree is passed inter-se between the parties, the question on the basis of which such decree is passed, could not be re-opened in the subsequent suit. It is argued that there is no evidence led on behalf of the plaintiffs that the decree passed against them on 16.11.1966 was either a result of fraud, misrepresentation or is invalid on any of the permissible grounds, therefore, decree passed by the Courts below, is not sustainable in law.
8. Learned Counsel for the respondents, controverting the arguments have submitted that both the Courts below have gone into the entire evidence in detail and have returned a concurrent finding of fact that since the decree dated 16.11.1966 has not been proved and that Will executed by Pritam Singh has not been produced, therefore, there is no substantial question of law, which arises for consideration in the present appeal. It is also submitted that Mohinder Krur was proceeded ex parte on 2.8.1974, when called upon to produce the Will and that the onus of proof that they have the valid title on the basis of Will was on the defendants. Since the defendants have not produced the Will or the decree, there is no error of jurisdiction in the judgment and decree passed by both the Courts below. It is also argued that only Gurbax Singh is reflected to be the person present at the time of sanctioning of the mutation and, therefore, no inference can be drawn in respect of the other plaintiffs.
9. After hearing learned Counsel for the parties, I am of the opinion that the substantial question of law, which arises for consideration of this Court is:
Whether the document Exhibit D.9, could be rejected in view of the pleadings raised by the plaintiffs.
10. The plaintiffs have filed a suit specifically challenging decree dated 16.11.1966. The decree was challenged on various grounds as mentioned above. It is the specific case of the plaintiffs that no decree dated 16.11.1966 or the original Will on the basis of which the said decree is alleged to have been passed is available. Therefore, the loss of the decree is apparent and was, in fact a pleaded case of the plaintiffs. Hence, the finding recorded by the Courts below that none of the Court officials was produced to prove the loss of the record in respect of decree dated 16.11.1966, is not sustainable in law. The defendants produced Exhibit D.9, a certified copy of the entry of the Register of suits which contains the description of the property as well as the plaintiffs and defendants and the nature of the decree. Such certified copy is sufficient to prove that a decree was passed in favour of Mohinder Kaur and against the defendants, in respect of the land in dispute. The fact that such record does not contain any description of the Will of Pritam Singh, is not material. All questions antecedent to the passing of the decree, shall be deemed to have been raised and decided in the said suit resulting into the said decree. Once Mohinder Kaur was declared owner in the said decree, it was not open to the plaintiffs to challenge such decree except on the grounds available in law i.e. fraud, misrepresentation, coercion etc. It was not required for the defendants to prove the Will of Pritam Singh again in the present suit as the question of inheritance of Pritam Singh stood conclusively decided in the previous suit.
11. In view of the above discussion, I am unable to uphold the findings recorded by the Courts below on Issues No. 3 and 4 and, thus, the findings on said issues are set aside.
12. The next relevant issue is Issue No. 5 i.e. whether the decree is liable to be set aside. The learned trial Court has found that the previous suit was filed on 31.8.1966, through Dilbag Singh, Attorney. On 8.7.1966, Dilbag Singh Attorney of Mohinder Kaur was present at the time of sanctioning of mutation vide Exhibit P.3. Thus, is inferred that Will was not produced on 8.7.1966, hence, there was no reason to file a suit on the basis of will on 31.8.1966. The said inference drawn by the Courts below is based upon conjectures. The civil suit was filed in respect of the estate of Pritam Singh. The plaintiffs were the defendants in the said suit. The question of inheritance of Pritam Singh having been decided in a previous suit, it was not open to the plaintiffs to re-agitate the issue of inheritance in the subsequent suit. The only option available to the plaintiffs was to challenge the decree on the available grounds. However, none of the grounds which are admissible in law such as fraud, misrepresentation, coercion etc. is neither alleged nor proved. In the absence of any such proof, the decree dated 16.11.1966 could not have been declared to be illegal and not binding on the interests of the plaintiffs in the present suit. The question having been decided in favour of the defendants, the appeal deserves to be allowed.
13. No other point has been urged.
14. Consequently, the present appeal is allowed, the judgment and decree passed by the Courts below are set aside and the suit filed by the plaintiff (sic) dismissed with no orders as to costs.