RSA No.3950 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3950 of 2006 Date of decision 02 .07.2010. Murari Lal ...... Appellant. versus Lala Amin Chand and others. ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. O.P.Goyal, Senior Advocate with Ms. Kanwaljit Kaur, Advocate for the appellant. Mr. D.R.Bansal, Advocate for respondents No.1 and 2. Mr. Deepak Gupta, Advocate for the respondent No.4. K.C.PURI, J. This is a regular second appeal directed by plaintiff-appellant against the judgment dated 26.7.2006 passed by Shri M.S.Virdi, District Judge, Faridkot vide which the appeal preferred by the present plaintiff- appellant against the judgment dated 27.5.2005 passed by Shri Sat Pal, Additional Civil Judge (Senior Division), Faridkot was dismissed. RSA No.3950 of 2006 2 Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that Kundan Lal and Net Ram were real brothers and the house in dispute detailed in the head note of the plaint was purchased by both the brothers in equal shares through a registered sale deed, which is in possession of defendant No.1. The plaintiff is adopted son of Kundan Lal, who had executed a registered will dated 19-4-1955 in favour of Murari Lal while bequeathing his half share in the said house alongwith other properties and therefore, after the death of said Kundan Lal, the plaintiff is owner of ½ share of the house in dispute. It is further pleaded that Amin Chand defendant No.1 is claiming that Kundan Lal had executed a gift deed of his ½ share in the said house on 12-10-1962 through a registered gift deed, which fact is absolutely denied. The same is a forged and fabricated document. So the sale of the said house by Amin Chand and Dinesh Chand defendants No.1 and 2 on 16-10-2000 during the pendency of the suit in favour of defendant No.3 is absolutely void and is not binding on the plaintiff. It is further alleged that previously the house in dispute remained under the possession of different tenants, but now since 1-9-2000 the plaintiff is in exclusive possession of the house in dispute. It is further alleged that the plaintiff does not want to keep his ½ share with the defendants joint and the defendants have also threatened to dispossess him forcibly from the said house and thus the plaintiff has filed the present suit for partition of the house and also for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the house in dispute. Defendants No.1 and 2 have filed written statement taking RSA No.3950 of 2006 3 preliminary objection that the plaint does not disclose any cause of action. It is admitted that the house in dispute was purchased by Kundan Lal and his brother Net Ram jointly to the extent of ½ share through a sale deed. However, they did not know anything about the alleged will dated 19-4- 1955. It is alleged that the defendants are not aware whether the plaintiff was adopted by Kundan Lal at any stage. However, Kundan Lal during his life time had gifted away his ½ share in the house in dispute to Dinesh Chand defendant No.2 through a registered gift deed dated 12-10-1962. So the question of becoming of the plaintiff the owner of ½ share of the house in dispute does not arise on the basis of any will. The plaintiff never remained in possession over the house in dispute and it is the defendants, who are in possession over the house in dispute and prior to their possession the same remained in possession with different tenants. Defendant No.3 has filed written statement taking the same pleas taken by defendants No.1 and 2 in their written statement and has alleged that she is in possession over the house in dispute at present. From the pleadings of the parties, the following issues were framed:- (1)Whether the plaintiff is adopted son of late Shri Kundan Lal? OPP. (2)Whether late Sh. Kundan Lal executed a valid registered will dated 19.4.1955 in favour of the plaintiff? OPP. (3)Whether the plaintiff had ever leased out the house in dispute to Sh.Net Ram? OPP. (4)Whether the plaintiff is entitled to the partition of the house in RSA No.3950 of 2006 4 dispute? OPP. (5)Whether the plaintiff is entitled to injunction, as prayed for? OPP. (6)Whether late Shri Kundan Lal executed and registered a valid gift deed dated 12.10.1962 in favour of defendant No.2? OPD2. (7)Relief. The Trial Court after recording evidence of both the parties and hearing the counsel for both the parties decided all the issues against the plaintiff and has ultimately dismissed the suit of the plaintiff vide judgment and decree dated 27.5.2005. Feeling dis-satisfied with the said judgment and decree the appellant preferred first appeal. The first appeal was dismissed by the learned Additional District Judge, vide judgment dated 26.7.2006. Still feeling dis-satisfied with the aforesaid two judgments of both the Courts below, the present appeal has been filed. The appellant in paragraph No.7 of the grounds of appeal have mentioned that following substantial questions of law have arisen :- (a) Whether the Courts below have ignored, misconstrued and misread the evidence on record thereby reaching on a wrong conclusion regarding adoption of the plaintiff appellant by Sh. Kundan Lal. (b) Whether non-decision on the application under Order 6, Rule 17 CPC filed by the plaintiff appellant has effected the findings of issue No.1, 2, 6 and that has given rise to a RSA No.3950 of 2006 5 substantial question of law. (c ) Whether dismissal of the application under Order 41 Rule 27 CPC by the First Appellate Court has effected the decision on issue No.1 and other issues and thereby prejudicing the case of the plaintiff appellant and wrong conclusion have been arrived at. (d) Whether wrong inference on the question of gift have effected the decision of issue No.2 and 6 and thus have led to the dismissal of the suit and appeal. Learned counsel for the appellant has submitted that application under order 6 Rule 17 of the Code of Civil Procedure was preferred before the trial Court for amendment of the plaint for taking additional plea that the gift deed in dispute is invalid document. The brother of Net Ram had been in a dominating position and by using his influence Kundan Lal he got executed the alleged gift in favour of his grandson Dinesh Chand. Net Ram was taking care of Kundan Lal and his wife Smt.Ganga Devi and as such Kundan Lal having fiduciary relation, exercised his undue influence to get the alleged gift deed in favour of his grandson Dinesh Chand. The said gift deed does not confer any title. The said application was not decided by the trial Court. The fact that said application has not been decided by the trial Court was assailed before the learned Additional District Judge. The learned Additional District Judge wrongly discarded his argument regarding the decision of the application dated 18.5.2005 for amendment of the plaint. It is contended that the case of the plaintiff is required to be remanded to the trial Court for fresh decision RSA No.3950 of 2006 6 after setting aside both the judgments of Courts below. Learned counsel for the appellant has further submitted that appellant has filed an application under Order 41 Rule 27 CPC before the first Appellate Court and the same was dismissed. The appellant has challenged that order also in the present appeal. Another application under Order 41 Rule 27 CPC has been filed in the present regular second appeal. Both the Courts below have given a finding that plaintiff has failed to prove the fact that he is adopted son of Kundan Lal. The document sought to be produced before the First Appellate Court as well as before this Court goes a long way to prove that plaintiff is adopted son of Kundan Lal. These documents are very much relevant for the just decision of the case. Some of these documents are maintained by the public authorities in which the plaintiff has been shown as adopted son of Kundan Lal. So, prayer has been made for allowing these documents to be produced and proved by way of additional evidence. Learned counsel for the appellant has further submitted that Kundan Lal executed Will dated 19.4.1955 in favour of the plaintiff. So, the plaintiff has duly proved the said Will. The said Will was more than 30 years old document and as such the execution of the same has to be presumed in accordance with Section 90 of the Indian Evidence Act. Both the Courts below have wrongly held that the said Will is not proved. It is further contended that gift deed dated 12.10.1962 in favour of Dinesh Chand has been wrongly relied upon by the trial Court. The said document is a suspicious document. The trial court has adopted double standard in respect of appreciating the evidence. Regarding Will dated RSA No.3950 of 2006 7 19.4.1955 in favour of the appellant, it has been held that the same is not proved as no marginal witnesses has been produced even the same is more than 30 years old document. So, it is contended that this way of appreciating the evidence is contrary to the basic principle of law. In reply to above noted submission, learned counsel for the respondent has supported the judgment of both the Courts below. The first point raised by the counsel for the appellant is that the trial Court has not decided the application dated 18.5.2005 and as such the plaintiff has been seriously prejudiced. The First Appellate Court has dealt in this aspect of the case in para No.10 of the judgment. It has been mentioned that although the application under Order 6 Rule 17 CPC for amendment of the plaint is on the record of the trial Court but it is not mentioned in the zimini orders that same has been filed. It is further mentioned that no order-sheet calling for the reply of the application is there. So, it is held that question of deciding the application under Order 6 Rule 17 CPC does not arise. However, from the close scrutiny of the file of the trial Court, it is revealed that on 18.5.2005, following order was passed by the trial Court :- “No rebuttal is present. On request, case is adjourned for 20.5.2005 for rebuttal evidence, tendering of documents and arguments and thereafter the case was adjourned to 25.5.2005 for rebuttal evidence and tendering of documents and arguments and again it was adjourned to 26.5.2005 for the same purpose. On 26.5.2005, the plaintiff closed the rebuttal evidence and arguments were heard and case was adjourned for RSA No.3950 of 2006 8 27.5.2005 for orders. On 27.5.2005, the case was decided by the trial Court.” So, from the bare reading of the order sheets of the trial Court, it is revealed that it is nowhere mentioned that any application under Order 6 Rule 17 CPC was filed. Moreover, on 18.5.2005, the case was already fixed for rebuttal evidence and the trial had been concluded and on that account, application under Order 6 Rule 17 CPC for amendment of the plaint so as to take the plea that gift deed in favour of Dinesh Chand is the result of influence of Net Ram and family members of Dinesh Chand at the fag end of the case, cannot be allowed to be taken. So, the learned trial Court has rightly repelled the above said contention of the appellant. The next question raised by the counsel for the appellant is in respect of dismissal of application under Order 41 Rule 27 CPC by the Ist Appellate Court and also making the prayer for allowing the application under Order 41 Rule 27 CPC produced before this Court for tendering certain documents. The documents sought to be produced before the First Appellate Court and sought to be produced before this Court were well within the knowledge of the appellant and he could produce the same by exercise of due diligence. These documents are not required by the Court to pronounce proper judgment. Otherwise also, these documents shall not advance the case of the appellant in any manner in as much as the basic evidence of giving in adoption of the plaintiff to Kundan Lal, is missing. In all these documents, although plaintiff has been mentioned as son of Kundan Lal, however, the fact remains that to prove the giving and taking ceremony, the witnesses are required to be examined by the plaintiff. RSA No.3950 of 2006 9 Admittedly, except the plaintiff, no witness has supported the case of the plaintiff regarding adoption. The testimony of the plaintiff himself is meaningless as according to him, he was only one and half years old at the time of adoption and he could not depose about the giving and taking ceremony of adoption. So regarding adoption, it is a case of no evidence and there is concurrent finding on that fact of both the Courts below and the same cannot be interfered in the regular second appeal. In view of the above circumstances, the application under Order 41 Rule 27 CPC filed in the present appeal stands dismissed and the order of rejecting the application under Order 41 Rule 27 CPC by the First Appellate Court, stands upheld. Now reverting to the execution of Will in favour of appellant, both the Courts below have held that the appellant has failed to prove the Will in accordance with law. Both the Courts below have rightly held that Will has to be proved in accordance with Sections 68 and 69 of the Indian Evidence Act. Section 90 of the Indian Evidence Act, pressed into by the counsel for the appellant, would not help the appellant in any manner inasmuch as the plaintiff has not proved that the Will contained the signatures/thumb impressions of the executant or witnesses thereof. In view of concurrent finding of both the Courts below regarding the execution of the Will, no interference can be made in the second appeal. So far as the submission made by the learned counsel for the appellant to the extent that both the Courts below have adopted different measures to prove the Will and adoption deed are concerned, that submission is without any substance. The defendants have produced the RSA No.3950 of 2006 10 marginal witnesses of the gift deed. No doubt, according to the appellant, both the witnesses of the Will have been stated to have been died but the plaintiff was required to prove that their signatures/thumb impressions appear on the Will along with the executant. So, the findings of both the Courts below that the Will is not proved, does not call for any interference. Now reverting to gift deed in favour of Deepak Chand is concerned, both the Courts below have returned a concurrent finding that the said gift deed executed by Kundan Lal stands duly proved. That being a finding of fact and in view of concurrent finding of both the Courts below, this Court cannot interfere, moreso, when the gift deed has been duly proved by marginal witness in accordance with law and that gift deed is more than 30 years old document. So, the finding of both the Courts below regarding execution of the gift deed also does not call for any interference. One another circumstance, which militates against the case of the plaintiff/appellant is that the plaintiff could have inherited the suit property only in case he is able to prove the gift deed as sham transaction. However, since the gift deed stands duly proved and as such the factum of Will in favour of the plaintiff and the factum of adoption in favour of the plaintiff loose its importance. So, keeping in view the above circumstances, the substantial question of law raised by the appellant above, stands answered against the appellant and consequently the appeal is without any merit and the same stands dismissed with costs. RSA No.3950 of 2006 11 A copy of this judgment be sent to the trial Court for strict compliance. July 02nd, 2010 (K.C. PURI) sv JUDGE