RSA No.2687 of 1987 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.2687 of 1987 Date of Decision: 8.3.2010 Sohan Singh & others ...Appellants Versus Baldev Singh & others .....Respondents 1. Whether Reporter of local papers may be allowed to see the judgment- Yes. 2.To be referred to the Reporters or not- Yes. 3. Whether judgment should be reported in the digest-Yes. Coram: Hon'ble Mr. Justice Alok Singh Present: Mr. A.P. Kaushal, Advocate for the appellants. Mr. B.S. Mann, Advocate for the respondents. ..... Alok Singh, J. 1. This second appeal has been filed by the plaintiffs challenging the judgment dated 19.9.1986 passed by Sub Judge First Class, Jalandhar by which learned trial Court partly decreed the suit of the plaintiff and rest the suit is dismissed qua property situated in village Alawalpur and further challeng in the present appeal is judgment of the First Appellate Court dated 10.10.1986 dismissing the appeal filed by the plaintiff. 2. The brief facts of the case are that Sardar Prabha Singh died on 2.11.1979 leaving behind the plaintiffs and defendants as his legal heirs. Sardar Prabha Singh deceased was having ancestral land in village Kalra as detailed in the Head note of the plaint and land in village Gol Pind and Alawalpur as self acquired property. Sardar Prabha Singh executed two valid Wills dated 15.10.1979 one in favour of all the plaintiffs and defendants in respect of land situated in Village RSA No.2687 of 1987 2 Kalra and Gol Pind and another in favour of plaintiffs and defendants No.1 and 2 in respect of land situated in Village Alawalpur in his sound disposing mind. Deceased Prabha Singh was being served by the plaintiffs and the Wills in question were executed due to service made by the plaintiffs. The possession over the property in dispute remained under the joint possession of the plaintiffs and defendants No.1 & 2 as co-sharers. Defendants No.1 and 2 alleged themselves to be the owners of the properties left by Sardar Prabha Singh decesed on the basis of two Wills dated 25.4.1972 and 7.10.1979 which are forged and fabricated ones. They were never executed by Sardar Prabha Singh deceased. Even otherwise he was not having any right to execute Wills in respect of land of Village Kalra which was ancestral property. The Revenue Authorities wrongly sanctioned the mutation in favour of defendants No.1 and 2 on the basis of alleged forged Will on 18.8.1982. This order is illegal, wrong and against natural justice. After the sanctioning of the mutation defendants No.1 and 2 are illegally threatening the plaintiffs and defendants 3 to 5 that they would alienate the land in question and dispossess them which they have no right to do so and hence the suit to declare their right as to owners in possession of the suit land as alleged in the head note of the plaint. 3. Defendants No.1 and 2 contested the suit. Remaining defendants have admitted the claim of the plaintiffs. 4. Defendants Baldev Singh and Avtar Singh in their written statement have taken the preliminary objection that the suit in present form is not maintainable and that the plaintiffs have no locus standi to file the present suit. On merits also the averments made by the plaintiffs are denied. While admitting that Prabha Singh was the owner of the land situated in village Kalra, Gol Pind and Alawapur, it is denied RSA No.2687 of 1987 3 that the land situated in Village Kalra was ancestral property of the deceased. It is further denied that deceased-Prabha Singh executed any two Wills on 15.10.1979 as alleged by the plaintiffs. On the other hand Prabha Singh executed a valid Will on 25.4.1972 in his sound disposing mind in favour of defendants No.1 and 2, which was registered pertaining to the property of Alawalpur. Regarding other property Prabha Singh again executed a valid Will dated 7.10.1979 in favour of defendants No.1 and 2. It was defendants No.1 and 2 who used to serve their father Sardar Prabha Singh deceased. On the basis of these Wills, defendants No.1 and 2 are the sole owner of the suit properties. They are also in possession of the property except some land situated at Gol Pind which is in possession of the plaintiffs as trespasser. The plaintiffs have absolutely no right over the property in dispute. Sardar Prabha Singh deceased had strained relations with plaintiffs and defendants 3 to 5. There was no question of executing any Will in their favour. The mutation has also been duly sanctioned in their favour and as such the suit of the plaintiffs is liable to be dismissed. 5. Learned trial Court framed following issues:- 1. Whether Prabha Singh executed two valid Wills dated 15.10.1979?OPP 2. Whether Prabha Singh executed valid Wills dated 25.4.1972 and 7.10.1979?OPD 3. Whether the two Wills dated 25.4.1972 and 7.10.1979 are forged and fabricated?OPP 4. Whether the order passed by SDO (Civil) on 18.8.1982, is wrong and illegal?OPP 5. Whether the suit is not maintainable?OPD 6. Whether the suit is not properly valued for the purposes of RSA No.2687 of 1987 4 Court fee and jurisdiction?OPD. 7. Whether the plaintiff has not locus standi to file this Court?OPD. 8. Relief. 6. Learned trial Court held that Wills propounded by the plaintiffs allegedly executed by the deceased Sardar Prabha Singh on 15.10.1979 were not genuine documents as the same were surrounded by number of suspicious circumstances and consequently Wills dated 15.10.1979 were rejected. However, Will propounded by defendants No.1 and 2 dated 25.4.1972 was found to be a genuine document having been executed by Sardar Prabha Singh deceased. Learned trial Court further held that another Will dated 7.10.1979 propounded by defendants No.1 and 2 was also ruled out and was held to be not a genuine document. 7. Feeling agreed from the judgment passed by the learned trial Court plaintiffs have preferred first appeal. Learned First Appellate Court, again re-appreciated entire evidence available on record and confirmed the findings of fact recorded by the learned trial Court. 8. I have heard learned counsel for the parties and perused the record. 9. Learned counsel for the appellant stated that while disbelieving Will of the plaintiff and believing the Will of the defendants both the Courts below failed to appreciate the evidence on record correctly. On being asked what is the substantial question of law involved therein learned counsel for the appellant stated that the question as to whether Will in favour of the plaintiff-appellant is genuine document and stood proved is a question of law. 9. I do not agree with the arguments advanced by the learned counsel for the appellant. This is settled position of law that even if two RSA No.2687 of 1987 5 views are possible, view taken by Court below cannot be disturbed in the second appeal unless and until appeal involves any substantial question of law. It is also settled position of law that while exercising power under Section 100 CPC this Court cannot re-appreciate the evidence unless and until appellant is able to point out that finding recorded by the Court below is based upon no evidence or admissible evidence was over looked and inadmissible evidence was relied upon or burden of proof was wrongly placed which vitiate the finding of the Court below resulting in formulation of substantiail question law. 10. In the present case learned counsel for the appellant could not point out any illegality and perversity in the findings recorded by both the Courts below. As to whether Will stands proved on the basis of evidence available on record is certainly a question of fact. In my humble opinion present appeal does not involve any substantial question of law, hence, appeal lacks merit. 11. The appeal is, therefore, dismissed with cost. (ALOK SINGH) JUDGE 8.3.2010 sharmila