Regular Second Appeal No. 3701 of 2010 1 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 In the High Court of Punjab and Haryana, at Chandigarh. 1. Regular Second Appeal No. 3701 of 2010 Hoshiar Singh and Others …Appellants Versus Smt. Hardei and Others …Respondents 2. Regular Second Appeal No. 3707 of 2010 Hoshiar Singh and Others …Appellants Versus Smt. Hardei and Others …Respondents AND 3. Regular Second Appeal No. 4373 of 2010 Hoshiar Singh and Others …Appellants Versus Smt. Hardei and Another …Respondents Date of Decision: 21.9.2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellants. Regular Second Appeal No. 3701 of 2010 2 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 Kanwaljit Singh Ahluwalia, J. (Oral) By this common judgment, three appeals viz. Regular Second Appeals No. 3701 of 2010, 3707 of 2010 both titled as “Hoshiar Singh and Others v. Smt. Hardei and Others” and No. 4373 of 2010 titled as “Hoshiar Singh and Others v. Smt. Hardei and Another” shall be decided together. Mr. Arun Jain, Senior Advocate, assisted by Mr. Amit Jain, Advocate, appearing for the appellants, has submitted that in all the three appeals, not only the parties are same but these pertain to the same plot allegedly sold by Balwant Singh, father of appellants No.2 to 5, respondent No.4-Ishwar Singh and husband of appellant No.6-Smt. Bhagwani alias Bhagwani Devi. Some undisputed facts can be noticed as under:- i) Balwant Singh son of Kirpa Ram, resident of House No. 244, Defence Colony, Hisar, was allotted a residential plot measuring 250 square yards bearing No. 573, in Sector 14, Hisar, by the Haryana Urban Development Authority (hereinafter referred to as “HUDA”) through its Estate Officer, Hisar. ii) Balwant Singh died on 12.4.1995. iii) Ishwar Singh son of Balwant Singh, who is arrayed as respondent No.4 in Regular Second Appeal Nos. 3701 and 3707 of 2010 and respondent No.2 in Regular Second Appeal No. 4373 of 2010, had filed a suit viz. Civil Suit No. 546 dated 12.12.1996 Regular Second Appeal No. 3701 of 2010 3 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 against the HUDA and his brothers, sisters and mother. On the basis of decree dated 28.8.1997, passed in the said civil suit by the Court of Additional Civil Judge (Senior Division), Hisar, the plot in dispute was transferred in his name, by HUDA, Hisar. iv) Thereafter, the plot was sold by the transferee Ishwar Singh to Hoshiar Singh, present appellant No.1 , on 11.7.1996. The facts in dispute, which led to filing of three suits, which were consolidated, can be narrated as under:- a) Balwant Singh, on 25.7.1990, had executed an agreement to sell as well as a Will in favour of Smt. Hardei. b) A ban was imposed by defendant No.1-HUDA for transferring the plots situated in Sector 14, Hisar. c) Balwant Singh had executed first General Power of Attorney in favour of Kuldip Singh son of Smt. Hardei on 9.8.1990 qua plot No. 673, Sector 14, Hisar. d) In the earlier record, the plot number was described as 673 but lateron, the HUDA, vide its letter dated 24.10.1990, informed that the exact number of plot is 573. Therefore, another power of attorney qua plot No. 573, Sector 14, Hisar, was executed in Regular Second Appeal No. 3701 of 2010 4 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 favour of plaintiff No.2-Kuldip Singh son of Smt. Hardei on 15.3.1991. Having given the gist of the undisputed and disputed facts, it will be necessary to notice the pleadings of the parties, rival arguments raised, the findings returned by both the Courts below and also the arguments raised by the learned counsel Mr. Jain. Smt. Hardei along with her son Kuldip Singh filed a suit on 10.4.1996 for declaration to the effect that they are owners in possession of plot No. 573 situated in Sector 14, Hisar, measuring 250 square yards on the basis of the Will dated 25.7.1990 executed by Balwant Singh, deceased and his legal heirs i.e. sons, daughters and widow, who are defendants No.2 to 7 to the suit, have no concern with the plot in question and the plaintiffs are entitled to get their names entered in the record of respondent No.1-HUDA in place of Balwant Singh. As a consequential relief, they sought injunction restraining defendant No.1 from transferring the plot in question in the names of defendants No.2 to 7, being legal heirs of Balwant Singh. In the suit, it was pleaded that plaintiff No.1-Smt. Hardei, had purchased the plot in dispute from it allottee Balwant Singh, deceased, by paying the total sale consideration of ` 1,02,500 and furthermore having agreed to pay the remaining instalments to respondent No.1- HUDA. It was stated that agreement to sell to this effect was executed by Balwant Singh on 25.7.1990. It was further pleaded in the suit that a ban was imposed by respondent No.1-HUDA for transfer of the plot situated in Sector 14, Hisar and therefore, to facilitate sale of the plot, Regular Second Appeal No. 3701 of 2010 5 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 Balwant Singh had also executed a Will on the same day i.e. dated 25.7.1990 in favour of plaintiff No.1-Smt. Hardei in respect of the said plot. Furthermore, Balwant Singh parted with the ownership and possession of the plot in favour of plaintiff No.1-Smt. Hardei and had executed a general power of attorney in favour of plaintiff No.2-Kuldip Singh son of plaintiff No.1-Hardei, which was registered on 9.8.1990 in the presence of the witnesses. It was also averred that the entire original record of the plot in question was handed over to the plaintiffs and the subsequent instalments have been paid by plaintiff No.2-Kuldip Singh, holder of general power of attorney and the original receipts to this effect are in possession of the plaintiffs. Furthermore, in response to the letter issued by defendant No.1-HUDA, enhanced additional price amounting to ` 19,200 was also deposited by plaintiff No.2-Kuldip Singh vide receipt No.234539 dated 31.8.1994. It is stated that initially when the plot was allotted to Balwant Singh, the number of plot was given by defendant No.1-HUDA as 673 and therefore, this number was reflected in the agreement to sell, Will, both dated 25.7.1990 and the general power of attorney registered on 9.8.1990. Lateron, defendant No.1- HUDA had issued a letter dated 24.10.1990 admitting inadvertence and corrected the plot number as 573. Therefore, Balwant Singh, during his life time, had executed another registered power of attorney in favour of plaintiff No.2-Kuldip Singh, son of plaintiff No.1-Smt. Hardei on 15.3.1991, wherein the correct number of plot was mentioned as 573. The plaintiffs, 3/4days before filing of the suit, had learnt that Balwant Singh had died, therefore, plaintiff No.1-Smt. Hardei was entitled to get Regular Second Appeal No. 3701 of 2010 6 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 her name entered as owner of the plot in question on the basis of Will in the record of defendant No.1-HUDA in place of Balwant Singh. The plaintiffs also learnt that defendant No.1 was intending to transfer the plot in question in the names of defendants No.2 to 7 for extraneous reasons. The above said facts have been culled out from the plaint, a copy whereof, during the course of arguments, has been provided by the learned counsel Mr. Jain. Smt. Hardei had also filed a petition No. 26-Succession under Section 276 of the Indian Succession Act, 1925 and had also instituted a suit viz. Civil Suit No. 685-C dated 20.1.1998 seeking declaration that decree dated 28.8.1997, passed in favour of Ishwar Singh by the Court of Additional Civil Judge (Senior Division), Hisar, is not binding upon the plaintiffs and is nullity. All the three suits were consolidated vide order dated 11.1.2005. Upon issuance of notice, the defendants appeared and filed their respective written statements. Defendant No.1-HUDA, in its written statement, had raised preliminary objections regarding maintenance of the suit, jurisdiction of the trial Court, suit being bad for non-joinder and mis-joinder of the necessary parties, lack of cause of action and suit being not properly valued for the purpose of jurisdiction and Court fee. It was also stated in the written statement that there was a ban on transfer of plots in Sector 14, Hisar, from 18.10.1994 to 4.7.1995. The execution of the Will was denied and it was further stated that the general power of attorney Regular Second Appeal No. 3701 of 2010 7 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 registered on 9.8.1990 was in respect of plot no. 673 and not qua plot No. 573. Lateron, another power of attorney was executed by Balwant Singh in favour of plaintiff No.2-Kuldip Singh on 15.3.1991. It has been admitted that Kuldip Singh had paid ` 19,200 towards enhancement of additional price of the plot. The HUDA stated that the plot was transferable under HUDA Rules & Regulations. Defendants No.2 to 7, which included Ishwar Singh, proforma respondent herein, filed a separate written statement. They disputed all the facts stated in the plaint. They stated that after the death of Balwant Singh on 12.4.1995 being his legal heirs are entitled to inheritance and they have every right to manage the plot. Appellant No.1 was impleaded as defendant No.8 to the suit. He disputed execution of general power of attorney, agreement to sell, Will and stated that being a bonafide purchaser he had purchased the property from the legal heirs of Balwant Singh. The trial Court, after conclusion of the pleadings, had formulated the following issues:- “1. Whether Balwant Singh executed Will dated 25.7.1990 in favour of plaintiffs in respect of his property as alleged? OPP 2. If issue No.1 is proved, whether the plaintiffs have become owners in possession of Plot No. 573, Sector 14, Hisar, as alleged/ OPP 3. If the above issues are proved, whether the plaintiffs are entitled to the relief of Regular Second Appeal No. 3701 of 2010 8 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 injunction as prayed for? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs have got no cause of action to file the present suit? OPD 6. Whether he plaintiffs are estopped by their own acts and conduct to file the present suit? OPD 7. Whether the plaintiffs have got no locus standi to file the present suit? PD 8. Whether suit is not properly valued for the purpose of Court fees and jurisdiction? OPD 9. Relief.” To avoid repetition of facts, it will be apposite here to reproduce the issues framed in the petition filed under Section 276 of the Indian Succession Act, 1925:- “1. Whether the petitioner is entitled to the grant of probate of the Will dated 25.7.1990 on the grounds mentioned in the petition, if so, to what effect? OPP 2. Whether this Court has got no jurisdiction to try the present petition? OPR 3. Relief.” In the third suit, wherein declaration was sought that the Regular Second Appeal No. 3701 of 2010 9 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 decree is not binding, the trial Court had formulated the following issues:- “1. Whether the decree dated 28.8.1997 passed by Shri R.K. Khangwal, Addl. Civil Judge (Senior Division), Hisar, in Civil Suit titled Ishwar Singh Vs. State of Haryana and Ors. regarding Plot No. 573 is illegal, contravenes, based on fraud and by misrepresentation, thus, liable to be set aside? OPP 2. Whether the suit of the plaintiff is time barred?OPD 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiffs are estopped by their own acts and conduct from filing the present suit? OPD 5. Whether the plaintiffs have not come in the Court with clean hands and suppressed the material facts from the Court? OPD 6. Relief.” Since three suits were consolidated, the evidence was led in the first suit viz. Civil Suit No. 57 of 1996. The plaintiffs have examined eight witnesses and tendered documents Mark “A” to Mark “J”, whereas Regular Second Appeal No. 3701 of 2010 10 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 the defendants examined Hoshiar Singh, defendant No.8 to the suit, as DW.1, Raj Pal Lamba, Assistant, from the office of the HUDA as DW.2. The trial Court took issues No.1 to 3 together and held as under:- “48. In totality of the circumstances, it is concluded that Balwant Singh executed a valid will dated 25.07.1990 besides agreement to sell and GPAs in favour of the plaintiffs, consequently, the judgment and decree dated 28.08.1997 have no binding effect upon the rights of the plaintiffs, so they are owners in possession of the plot bearing No. 573, Sector 14, Hisar and they are entitled to relief of injunction. All these issues are decided in favour of the plaintiffs.” The Court further decided issue No.4 against the defendants and held that the suits filed by the plaintiffs were maintainable. Issues No. 5 to 8 were also decided against the defendants as the Court held that it cannot be said that the plaintiffs have no cause of action to file the suit. The Court further held that the plaintiffs have the locus standi and the suit has been properly valued for the purpose of Court fee and jurisdiction. Thus, all the three suits, instituted by the plaintiffs, were decided in their favour and the direction was issued to defendant No.1 to issue allotment letter in favour of plaintiff No.1-Smt. Hardei. The lower Appellate Court has also affirmed the findings returned by the trial Court. Mr. Jain, learned counsel, appearing for the appellants, has Regular Second Appeal No. 3701 of 2010 11 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 assailed the findings returned by both the Courts below and has submitted the following arguments, for consideration of this Court:- a) Mr. Jain has submitted that all the four documents i.e. Will dated 25.7.1990, agreement to sell of even date and subsequent general power of attorneys dated 9.8.1990 and 15.3.1991 executed by Balwant Singh in favour of Kuldip Singh, plaintiff No.2 should have been taken together as a part of one transaction and both the Courts below have gravely erred in considering the Will dated 25.7.1990 as an independent document. Learned counsel submits that it has been specifically stated in the Will that it has been executed because of execution of agreement to sell dated 25.7.1990. He further submits that failure of the plaintiffs to prove the agreement to sell dated 25.7.1990 should have been taken as a suspicious circumstance to ignore the Will executed in favour of plaintiff No.1-Smt. Hardei. b) Plaintiff No.1-Smt. Hardei stepped into the witness box and furnished her affidavit towards her examination-in-chief but lateron had not appeared for cross-examination, therefore, this should have been considered adversely against the plaintiffs. c) The Will dated 25.7.1990 and agreement to sell of Regular Second Appeal No. 3701 of 2010 12 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 even date, though not been proved are qua plot No. 673. Thereafter, execution of subsequent power of attorney in favour of plaintiff No.2-Kuldip Singh son of plaintiff No.1-Smt. Hardei on 15.3.1991 will not make the Will and agreement to sell dated 25.7.1990 as documents of consequence and the suspicion which accompanied these documents will not stand removed because of subsequent power of attorney. d) It has been specifically admitted by defendant No.1- HUDA in the written statement that the ban was imposed on transfer of plots in Sector 14, Hisar, from 18.10.1994 to 4.7.1995. Therefore, the rights of the executant Balwant Singh, owner of the plot in dispute, in no manner, were eclipsed at the time when agreement to sell and Will dated 25.7.1990 were executed. Therefore, there being no impediment on the date of execution i.e. 25.7.1990 itself, the plot should have been transferred by way of sale deed. e) The Will dated 25.7.1990 is surrounded by suspicious circumstances as it never contained the signatures of the attesting witnesses but the particulars of the agreement are specified in it. f) Lastly, it is urged that non filing of the suit for Regular Second Appeal No. 3701 of 2010 13 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 specific performance of the agreement to sell dated 25.7.1990 in itself is a circumstance to discard the said Will. I have given my due consideration to the arguments raised by learned counsel for the appellants. The totality of circumstances which cannot be ignored are that in pursuance of agreement to sell dated 25.7.1990 the entire sale consideration was paid to Balwant Singh. On the day when agreement to sell was executed, the Will was also executed. It is an admitted fact that the plaintiffs are strangers to the family of Balwant Singh. It is because of commercial transaction that Balwant Singh had executed a Will. The two documents i.e. agreement to sell and the Will dated 25.7.1990 could have been ignored, had there been no registration of two general power of attorneys in favour of plaintiff No.2-Kuldip Singh, son of plaintiff No.1-Smt. Hardei on 9.8.1990 and 15.3.1991. These general power of attorneys are registered documents executed after one year and one and a half year, respectively. It is, in pursuance of commercial transaction that Balwant Singh had executed the general power of attorneys in favour of plaintiff No.2-Kuldip Singh. Letter dated 24.10.1990, issued by the HUDA, on which reliance has been placed by the trial Court, necessitated execution of the subsequent power of attorney by Balwant Singh in favour of plaintiff No.2-Kuldip Singh specifying the correct number of the plot. It is also admitted by defendant No.1-HUDA that amount of ` 19,200 towards the enhanced price was paid by plaintiff No.2-Kuldip Singh. When these circumstances are taken together as a whole, they Regular Second Appeal No. 3701 of 2010 14 Regular Second Appeal No. 3707 of 2010 And Regular Second Appeal No. 4373 of 2010 do lend credence to the findings recorded by both the Courts below. They have discussed the evidence threadbare. After analyzing and dissecting the evidence, they have returned findings of fact, thus, this Court, in Regular Second Appeal, will be hesitant to disturb the well reasoned findings because another view can be formulated on the basis of criticism made by learned counsel for the appellants. This Court is of the view that valiant efforts made by learned counsel for the appellants, during the course of arguments, have proved futile to formulate any question of law, much less a substantial one, for consideration of this Court. Hence, no interference is warranted in all the three appeals and the same are hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge September 21, 2011 “DK”