RSA No.4134 of 2009 (O&M) 1 IN THE HIGH COURT OFPUNJAB AND HARYANA, CHANDAIGRH RSA No. 4134 of 2009(O&M) Date of decision: 25.8.2010 Raghbir Singh .....Appellant. v. Kunto Devi and others .......Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr.Parveen Kumar, Advocate, for the appellant. -- RAKESH KUMAR GARG,J. This is defendants' second appeal challenging the judgment and decree of the lower Appellate Court whereby appeal filed by the plaintiff- respondents has been accepted with costs and the will dated 3.9.1986 executed in favour of the appellant by Ram Kishan alias Kishan Chand (father of the parties, hereinafter referred to as Ram Kishan), has been held to be full of suspicious circumstances, and has been discarded as such, holding that the Class-I legal heirs of Ram Kishan will succeed to his estate in equal shares on the basis of natural succession. The brief facts of the instant appeal are that respondents No. 1 to 3 (plaintiffs) filed a suit for joint possession to the extent of 1/4th share of the suit land against the appellant (defendant No.1) and respondents No. 4 to 14 proforma defendants in the trial Court), inter alia, alleging that the land in dispute was owned and possessed by their father Ram Kishan and he executed a registered will dated 11.3.1986 in their favour in his sound and disposing mind and, therefore, by virtue of the said will they are entitled to inherit 1/4th share each in respect of the suit land. It was further alleged that RSA No.4134 of 2009 (O&M) 2 mutation No.4393 in favour of the appellant on the basis of will dated 3.9.1986 executed by Ram Kishan was illegal, null and void and ineffective as far as their rights were concerned. Upon notice of the aforesaid suit, the appellant who was the only contesting defendant filed written statement in which it was pleaded that the suit in the present form was not maintainable as earlier also respondents had filed a similar suit regarding the same land on the same cause of action but the same was dismissed as withdrawn without permission of the Court to file a fresh suit; the suit is barred by principle of res judicata and under the provisions of Order 23 of the Code of Civil Procedure, and that the suit is not within time and was bad for non joinder and mis joinder of necessary parties. On merits, the appellant-defendant pleaded in the written statement that the deceased Ram Kishan who was his father, had executed a valid will dated 3.9.1986 in his favour in which the earlier will dated 11.3.1986 propounded by plaintiff-respondent was revoked and on the basis of the said will the mutation was rightly sanctioned in his favour by the revenue authorities in the presence of respondents No. 1 to 3, who did not object to the same. Thus, the plaintiff-respondents were estopped from filing the present suit. The other allegations made in the plaint were denied and the dismissal of the suit was prayed for. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the suit is not maintainable ?OPD 2. Whether the suit is barred by the principle of res judicata ? OPD RSA No.4134 of 2009 (O&M) 3 3. Whether the suit is barred under Order 23 CPC ?OPD 4. Whether the suit is not within limitation ?OPD 5. Whether the suit is bad for non joinder of necessary parties ?OPD 6. Whether the plaintiff is entitled to relief of joint possession to the extent of 1/4th share in the property in dispute ?OPP 7. Relief. The trial Court vide its judgment and decree dated 4.01.2004 came to the conclusion that though the Will dated 11.3.1986 pleaded by plaintiff-respondents was not proved in accordance with law yet the same cannot be questioned as its execution has been admitted in the will dated 3.9.1986 pleaded by the appellant and since the will (Ex.D1) pleaded by the appellant has been proved wherein the earlier will dated 11.3.1986 (Ex.P1) executed in favour of the plaintiff-respondents was cancelled, therefore, the suit of the plaintiff-respondents fails and, resultantly, the trial Court dismissed the suit. Aggrieved from the judgment and decree of the trial Court respondents No. 1 to 3 filed an appeal before the District Judge. The lower Appellate Court vide impugned judgment and decree dated 18.5.2009 accepted the appeal and set aside the judgment and decree passed by the trial Court. While dismissing the suit of the plaintiff(s) the lower Appellate Court further held that both the wills propounded by the parties are liable to be ignored as the will dated 11.3.1986 in favour of the plaintiff-respondents was not duly proved on the file, whereas the will dated 3.9.1986 propounded in favour of the appellant is definitely shrouded with suspicious circumstances and has been forged and fabricated in connivance with the RSA No.4134 of 2009 (O&M) 4 scribe and marginal witnesses. Resultantly, findings on issue No.6 were reversed holding that both the wills stood ignored and all Class-I heirs of Ram Kishan deceased will succeed to his estate in equal shares and mutation No.4393 was held to be null and void. Still not satisfied, appellant-defendant No.1 has filed the instant appeal challenging the judgment and decree of the lower Appellate Court submitting that the following substantial questions of law arises in this appeal:- (i)Whether the learned lower Appellate Court has wrongly came to the conclusion to hold the suit being not barred under Order 23 of the Code of Civil Procedure ? (ii) Whether the impugned judgment and decree passed by the learned lower Appellate Court is based on mis-reading and mis-appreciation of the evidence and as such do not deserve to sustain ? (iii) Whether this Hon'ble Court can interfere into the findings of facts recorded by the learned Courts below under section 100 of the Code of Civil Procedure, if the same are based upon misreading and mis appreciation of the evidence ? In support of his appeal, learned counsel for the appellant has vehemently argued that the findings given by the lower Appellate Court on issue No.6 are not based on the established facts on record and the same have been reversed without assigning any cogent reasons, as there are no other suspicious circumstances behind the execution of the will by the deceased in favour of the appellant and it is almost an admitted fact that the will was executed by the deceased during his life time in the presence of the witnesses. In support of his case, learned counsel has referred to cross examination of DW1 Raghubir Singh who in his cross examination has RSA No.4134 of 2009 (O&M) 5 stated that Ram Kishan executed two will during his life time. On the basis of this reply of the appellant in the cross examination , learned counsel for the appellant seeks to draw inference of the Court in his favour to establish that by putting such a suggestion the plaintiff- respondents have admitted the execution of the will dated 3.9.1986 in his favour and in view of the aforesaid admission, the findings of the lower Appellate Court that the will is shrouded with suspicious circumstances is erroneous. Learned counsel for the appellant has further argued that it has been established on record that plaintiff-respondents No.1 and 3 filed similar suits on the same cause of action with regard to the same land which was got dismissed as withdrawn without leave of the Court to file a fresh one and the trial Court rightly came to the conclusion that the suit on behalf of respondents No.1 and 3 was not maintainable but the lower Appellate Court has absolutely overlooked and ignored the aforesaid fact without any logic and came to the conclusion that the suit on behalf of respondents No.1 and 3 was maintainable. Learned counsel has further argued that the will in favour of the appellant has been proved in accordance with the well settled principles of law by producing one of the marginal witnesses of the will DW1 Bishan Dass and the scribe of the will who was produced by the plaintiff- respondents in their evidence, has also admitted in the cross examination that the will Ex.D1 was scribed by him and, therefore, in view of the aforesaid voluminous evidence on record, the findings of the lower Appellate Court on issue No.6 are liable to be reversed in favour of the appellant. I have heard the learned counsel for the appellant and perused the impugned judgment and decree of the lower appellate Court. RSA No.4134 of 2009 (O&M) 6 The fate of this appeal hinges upon the validity of will dated 3.9.1986 allegedly executed in favour of the appellant. Even if the second argument of the learned counsel for the appellant regarding the non maintainability of the suit on behalf of respondents No. 1 and 3 is accepted, yet in the absence of any testamentary document in favour of any of the parties, the estate of deceased Ram Kishan is to be inherited by his Class-I heirs as held by the lower Appellate Court. In this view of the matter, the argument raised by the learned counsel for the appellant regarding maintainability of the suit on behalf of respondents No.1 and 3 is of no significance keeping in view the decision being taken by this court on the issue of will. While discarding the will dated 3.9.1986 in favour of the appellant, the lower Appellate Court observed as under:- “ As far as Will dated 3.9.86 is concerned, it is definitely shrouded with suspicious circumstances. Affixing of thumb impressions of Ram Kishan in the middle of the Will shows that Raghbir Singh was in possession of a blank paper carrying thumb impression of Ram Kishan and later on after the death of Ram Kishan when he came to know about the Will dated 11.3.86, he converted the blank paper in a 'Will' in connivance with Raghbir Chand, deed writer, Nambardar Bishan Dass and Shanji Ram. There is absolutely no explanation why there is wide gap in the start of the Will and the gap is narrow at the end of the will. It shows that the scribe of the Will wanted to finish the Will on one page. In case Ram Kishan was alive when the Will was being scribed, then second sheet could be RSA No.4134 of 2009 (O&M) 7 used to conclude the will but since there was no second paper carrying thumb impression of Ram Kishan, the Will in question was forged. Therefore, I have no hesitation to hold that the Will Ex.D1 has been forged and fabricated in connivance with the scribe and marginal witnesses and, therefore, Will dated 3.9.86 is liable to be ignored and the findings of the learned Trial Court on issue no.6 are reversed.....”. A perusal of the aforesaid observations of the lower Appellate Court would show that on examination of the document in question the lower Appellate Court has found that there was absolutely no explanation with regard to the suspicion raised in the manner thumb impression of Ram Kishan taken in the middle of the document, over cutting and the gap in the initial lines and the narrow gap in the lines of the writing in the end. I have also examined the will in question, a photocopy of which was produced before this Court by the learned counsel for the appellant. From the naked eye it is clear that the will has been over-written over thumb impression of Ram Kishan, taken in the middle at the bottom of the paper raising the doubt and suspicion that the thumb impression was taken on a blank paper and the will in question was fabricated later on. In any case, the aforesaid question is a pure question of fact, which has been decided by the lower Appellate on re-appraisal of the evidence. The Hon'ble Supreme Court of India in Gurdev Kaur and others v. Kaki and others, 2007(1) SCC 546 held that the jurisdiction of the Court under Section 100 of the Code of Civil Procedure is never be that second appeal to become 'third trial on facts' or 'one more dice in the gamble'. In this view of the matter, no RSA No.4134 of 2009 (O&M) 8 interference is called for in a pure finding of fact by this Court in the present case, especially keeping in view the totality of the circumstances. No substantial question of law arises in this appeal. Dismissed. ( Rakesh Kumar Garg) Judge August 25, 2010 rk