REGULAR SECOND APPEAL No.2275 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2275 of 2010 DATE OF DECISION: FEBRUARY 8, 2011 Manjit Singh .... Appellant Versus Nirmal Singh .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. R. K. Joshi, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.6899-C of 2010 Allowed as prayed for. CM No.6900-C of 2010 For reasons mentioned in the application, which is accompanied by affidavit, delay of 30 days in refiling the appeal is condoned. Main appeal: Manjit Singh-defendant has filed the instant second appeal after having failed in both the courts below. Suit was filed by respondent-plaintiff Nirmal Singh against the defendant-appellant. Both the parties are brothers being sons of Bur Singh. Plaintiff alleged that Bur Singh was owner of the suit land. Plaintiff purchased it from Bur Singh for Rs.16,000/- vide registered sale deed dated 28.05.1993 and since then plaintiff is owner in possession of the suit land. However, defendant in connivance with revenue authority got mutation sanctioned in his own name on the basis of alleged will of Bur Singh. Defendant has no right, REGULAR SECOND APPEAL No.2275 OF 2010 -2- title or interest in the suit land, but he threatened to dispossess the plaintiff therefrom illegally and forcibly. Accordingly, the plaintiff sought declaration that he is owner in possession of the suit land measuring 9 Kanals 1 Marla. The plaintiff also sought permanent injunction restraining the defendant from dispossessing the plaintiff from the suit land and from interfering in his peaceful possession thereon illegally and forcibly. Defendant while admitting relationship between the parties broadly denied the plaint allegations and inter alia pleaded that suit land was ancestral coparcenary property and, therefore, Bur Singh was not competent to alienate the same. The defendant alleged that Bur Singh executed will dated 03.01.1996 bequeathing his property in favour of defendant. On death of Bur Singh on 27.10.1996, his inheritance mutation was rightly sanctioned in favour of the defendant on the basis of the will. Various other pleas were also raised. Learned Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 18.10.2005 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 18.08.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Stand of the defendant that suit property was ancestral coparcenary property, is not proved by any evidence. There is only self- serving oral statement of the defendant-appellant in support of his said version. However, even the defendant himself stated in examination in chief itself that his father Bur Singh was the original owner of the suit land. In cross-examination also, defendant admitted that suit land was self-acquired REGULAR SECOND APPEAL No.2275 OF 2010 -3- property of Bur Singh. No document has either been produced by the defendant to depict that the suit land was ancestral or coparcenary property in the hands of Bur Singh. On the other hand, defendant set up Will dated 03.01.1996 alleged to have been executed by Bur Singh and claiming ownership over the suit land on the basis of Will. This claim of the defendant runs contrary to his version that Bur Singh was not competent to alienate the suit property to the plaintiff being ancestral coparcenary property. Be that as it may, the defendant has miserably failed to prove that the suit land was ancestral or coparcenary property in the hands of Bur Singh. On the contrary, defendant's own testimony reveals that suit land was self-acquired property of Bur Singh. As regards will dated 03.01.1996, defendant has not proved the same as no attesting witness of the said will has been examined. Consequently, the provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act have not been complied with to prove valid execution of the will. The plaintiff has proved sale deed dated 28.05.1993 in his favour by himself stepping into witness box as PW-1 and also by examining Jarnail Singh PW-3 who is attesting witness of the aforesaid sale deed. Consequently, plaintiff is proved to be owner in possession of the suit land in view of the sale deed. Learned counsel for the appellant emphatically contended that the sale deed is not proved to be for consideration as Jarnail Singh, PW-3 admitted that sale consideration was not paid in his presence. The contention is misconceived and devoid of merit. As per recital in the sale deed as submitted by counsel for the appellant himself, sale consideration had already been paid. REGULAR SECOND APPEAL No.2275 OF 2010 -4- It is thus apparent that sale consideration was not paid in presence of attesting witness Jarnail Singh and, therefore, he rightly made statement to this effect. According to the recital in the sale deed, sale consideration already stood paid to the vendor Bur Singh. Recital in the sale deed in this effect coupled with admission of vendor Bur Singh before Sub-Registrar at the time of registration of sale deed regarding receipt of the sale consideration is sufficient to prove the payment of sale consideration. In addition thereto, there is also testimony of plaintiff himself that he purchased the suit land for consideration. At this distant time, the plaintiff could not be expected to lead any other evidence. There is concurrent finding by both the courts below in favour of the plaintiff-respondent. The said finding is based on proper appreciation of evidence and is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is completely frivolous and meritless and is accordingly, dismissed in limine. (L. N. MITTAL) JUDGE 8th February, 2011 'raj'