IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.296 of 2007 (O&M) Date of Decision : 18.3.2010 Kiran alias Satti ....Appellant Versus Kuldeep Singh ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Avnish Mittal, Advocate for the appellant. Mr.I.S.Brar, Advocate for the respondent. ..... MAHESH GROVER, J. This appeal by the defendant is directed against the judgments of the trial Court dated 29.3.2005 and that of the first Appellate Court dated 17.3.2006. The plaintiff/respondent filed a suit for declaration and possession by pleading that Hukam Kaur, who was the original owner of the suit property, sold half of her share to him vide sale deed 28.11.1994 and the other half was sold to his relation Major Singh who further sold the same to the plaintiff. He thus pleaded his ownership and in the alternative he pleaded that there was a validly execute Will dated 23.4.1996 in his favour. The defendant/appellant also set up a Will dated 12.2.1996 in her favour. She also filed a counter claim assailing the validity of R.S.A.No.296 of 2007 (O&M) -2- the Will in favour of the plaintiff/respondent as also the sale deed. Hukam Kaur died in the year 1997. Both the Courts below returned a finding that the Will and sale-deed in favour of plaintiff/respondent were validly executed documents and decreed his suit and dismissed the counter claim, filed by the appellant/defendant which has resulted in filing of the instant regular second appeal. It has been contended by the learned counsel for the appellant that the respondent had raised two contradictory pleas. If there was a valid registered sale deed, then there was no occasion to set up a Will and from there it can be inferred that the plaintiff/respondent had no right to the property. The aforesaid contention has been controverted by the learned counsel for the respondent who contended that the sale deed and the Will have duly been proved on record and consequently in the absence of any other material showing these documents to be forged and fabricated, the findings recorded by the Courts below cannot be termed to be erroneous. I have heard learned counsel for the parties and have perused the impugned judgments. The foremost question that is to be considered by this Court is whether the plaintiff/respondent was having a duly registered sale deed in his favour from which he derived the title. If this question is determined in his favour, then the question as to whether the Will was validly executed by Hukam Kaur in favour of the plaintiff/respondent becomes meaningless. A perusal of the impugned R.S.A.No.296 of 2007 (O&M) -3- judgments shows that the sale deed dated 28.11.1994 regarding half share of Hukam Kaur was a registered document. To support the execution of this document the deed-writer was examined as PW1 and the attesting witness as PW2. Both of them testified to the correctness of the sale deed and stated that it was read over and after admitting the same to be correct Hukam Kaur thumb marked it and it was also attested by Vishva Mitter and Gurbax Singh. The factum of the sale deed was entered in the register and this entry was also proved. Similarly, the sale of half share in favour of Major Singh by Hukam Kaur was also proved. The sale deed had a recital about the passing of consideration to Hukam Kaur. It is also to be seen that Hukam Kaur remained alive for about two years after the execution of the sale deed and she never questioned the sale in favour of plaintiff/respondent. In this view of the matter, the execution of the sale deed having been duly proved, the validity of the Will hardly make any difference as on the stipulated date when the succession of Hukam Kaur opened she was divested of the ownership because of the two validly executed sale deeds in favour of the plaintiff/respondent and Major Singh. In the opinion of this Court the setting up of the Will was merely an enthusiastic attempt to protect his possession but in any eventuality it cannot be considered to be casting a cloud or suspicion on the ownership of the respondent. The appeal is, therefore, totally without any merit and is dismissed. R.S.A.No.296 of 2007 (O&M) -4- There is a delay of 127 days in filing the appeal which has also not been satisfactorily explained. 18.3.2010 (MAHESH GROVER) JUDGE dss