IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 321/2011 Reserved on: 19.8.2011 Decided on:9.9.2011 ___________________________________________________ Harmehtab Singh Rarewala. …Appellant. Versus Jagteshwarpreet Singh Rarewala and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. B.C. Negi, Advocate. For the Respondents : Mr. Sudhir Thakur, Advocate for respondents No.1 and 2. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 31.5.2011 rendered by the learned Additional District Judge, Fast Track Court, Solan in Civil Appeal No.27/FTC/13 of 2010. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit for permanent injunction against the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 respondents-defendants (hereinafter referred to as “defendants’ for convenience sake) stating therein that he was nephew of late Sh. Dileshwar Prit Singh Rarewala, who died on 13.2.2007 at Delhi. The deceased was being looked after by the plaintiff. Deceased had great love and affection towards him. Deceased died issueless. Plaintiff was nominated as the nominee by the deceased in his various bank accounts. Defendants No.1 and 2, namely, Jagteshwar Prit Singh Rarewala and Rameshwar Prit Singh Rarewala are the real brothers of the deceased. However, deceased was not looked after by them. Deceased had transferred his movable and immovable property in favour of the plaintiff through a “will” on account of services being rendered by him. Deceased was living with him at Kasauli. It is further alleged that after the death of deceased, defendant No.3 in connivance with defendants No.1 and 2 had put his locks on the suit property. Defendants No.1 and 2 were threatening to remove the valuable items, including the “will”. According to the plaintiffs, defendants have no right to enter into the suit property and also to remove valuable items, including “will”. 3. Suit was contested by defendants No.1 and 2. On merits, it was denied that the plaintiff was nephew of 3 deceased. It was also denied that the deceased was looked after by the plaintiff and he had great love and affection towards the plaintiff. According to defendants, they were looking after their brother. They were class-II heirs since the deceased had not left behind class-I heir. They have denied that the plaintiff was looking after the deceased. According to them, after the death of deceased, defendants as lawful owners are in settled possession of the suit property and the other property left by the deceased and the question of entering into the suit property by the defendants does not arise as they already possessed the same. Defendants No.1 and 2 also filed counter-claim seeking relief of permanent prohibitory injunction alleging therein that defendants No.1 and 2 were the real brothers of the deceased, who had left behind movable and immovable property within the jurisdiction of the court. The suit property belongs to defendants No.1 and 2 as absolute owner. According to them, the deceased died intestate and they succeeded the deceased as natural heirs. They were in settled possession of the suit property. 4. Plaintiff filed replication to the written statement and reiterated the averments contained in the plaint. Plaintiff has also taken additional plea that in view 4 of the pendency of the suit titled as Harmehtab Singh Rarewala versus Jagteshwar, the present suit was liable to be stayed. Plaintiff also filed written statement to the counter-claim. Plaintiff has taken the preliminary objections qua maintainability, non-joinder of necessary parities, valuation, locus standi and estoppel etc. On merits, it was admitted that counter-claimants are the real brothers of deceased. It was denied that the counter- claimants were the owners of the suit property in equal shares. It was denied that counter-claimants were in possession of the suit property as absolute owners being class-II heirs of the deceased. It was denied that plaintiff had no right, title or interest in the suit property. It is alleged that deceased had executed a “will” dated 1.9.2006 in a sound and disposing mind and as per this ‘will’ counter-claimants have no right, title or interest in the suit property. 5. Issues were framed by the trial court on 15.1.2008. Learned Civil Judge (Senior Division) dismissed the suit on 9.8.2010 and counter-claim filed by defendants No.1 and 2 was also dismissed. Plaintiff preferred an appeal against the judgment and decree dated 9.8.2010 before the Additional District Judge, Fast Track Court, Solan. Defendants No.1 and 2 also filed 5 Cross-Objections, under order 41 rule 22 of the Code of Civil Procedure, against the findings on issue No.5 in civil suit No. 7/1 of 2007 before the Additional District Judge, Fast Track Court, Solan. He framed the following points for determination: 1. Whether the appellant/plaintiff is entitled to the relief of permanent prohibitory injunction and the findings contrary to it given by the learned trial court are liable to be set aside on the basis of the material on the file? 2. Whether the respondents/defendants No.1 and 2 are entitled to the relief of permanent prohibitory injunction by way of counter claim and the findings of the learned trial court on issue No.5 are liable to be set aside and the counter claim of the respondents/defendants No.1 and 2 is to be decreed on the basis of the material on the file, as alleged? 5. Learned Additional District Judge, Fast Track Court dismissed the appeal preferred by the plaintiff on 31.5.2011. However, the Cross-Objections filed by defendants No.1 and 2 were allowed and the plaintiff was restrained from causing interference in possession of the defendants No.1 and 2 in Kothi left by deceased Dileshwar Prit Singh in Jagjit Nagar as shown in the copy of jamabandi Ex.PW-1/D or Ex.PW-1/E. This Regular Second Appeal is directed against the judgment and decree dated 31.5.2011. 6 7. Mr. B.C. Negi on the basis of substantial questions of law framed has vehemently argued that both the courts below have not correctly appreciated the oral as well as documentary evidence. According to him, the plaintiff was in possession of the suit property and the findings recorded by both the courts below to the contrary are liable to be set aside. He has also argued that the appellate court has not assigned any reasons while reversing the findings of trial court and allowing the Cross-Objections preferred by defendants No.1 and 2. 8. Mr. Sudhir Thakur appearing on behalf of defendants has supported the judgment and decree passed by the first appellate court. 9. Defendants No.1 and 2 have filed caveat petition, under section 148-A of the Code of Civil Procedure. Plaintiff has also filed application bearing CMP No. 701/2011 under order 41 rule 27 of the Code of Civil Procedure for placing on record additional evidence. 10. I have heard the learned counsel for the parties and have perused the pleadings carefully. 11. Plaintiff has appeared as PW-1 and tendered his evidence by way of affidavit Ex.PW-1/A. He has admitted that defendants No.1 and 2 are the only surviving brothers of the deceased. He has denied that 7 deceased used to live with defendants No.1 and 2. He has admitted that he has pleaded in the suit about the ‘will’ in his favour lying in the locker of State Bank of Patiala. However, when the same was not found in the locker, he filed suit in Ludhiana. He did not know the date when the ‘will’ was not found in the locker. He has produced the ‘will’ mark ‘A’ in the court. He was not aware that F.I.R. qua forged “will” was registered against him with the Police Station, Kasauli. According to him, the suit property is measuring 30'x 60'. He has also admitted that the deceased had not declared him nominee in his bank account. He has also stated that keys were with him as he used to live with the deceased. According to him, defendant No.1 had broken the locks. 12. PW-2 Mohan Lal has tendered his evidence by way of affidavit Ex.PW-2/A. He has denied that defendants No.1 and 2 used to live in the Kothis of the deceased. He deposed that deceased had two Kothis at Jagjeet Nagar. PW-3 Avtar Singh has brought the record of case No.SC-7/14-3-2002 from the court of Additional Civil Judge, Khanna. He has proved documents Ex.PW- 3/A to Ex.PW-3/C. He has admitted in his cross- examination that defendants No.1 and 2 were not party in 8 the litigation pending before the Additional Civil Judge, Khanna. 13. Defendant has appeared as DW-1. He has tendered his evidence by way of affidavit Ex.DW-1/A. He has denied the suggestion that plaintiff and his family have incurred all the medical expenses of the deceased. He has denied the suggestion that the plaintiff is living in some building at Jagjeet Nagar. He has denied that plaintiff was in possession of the property of the deceased. He has admitted to have lodged a complaint against the plaintiff qua the theft of vehicles of the deceased with the police. He has also admitted to have lodged a complaint against the plaintiff qua forged ‘will’. 14. Plaintiff has produced PW-4 Amar Singh to rebut the defendants’ evidence of counter-claim. He has also led his evidence by way of affidavit Ex.PW-4/A. He could not tell whether at the time of death of the deceased his age was more than 40 years or not. He denied that the heirs of deceased were in possession of the suit property. 15. PW-5 Devender Singh has also tendered his evidence by way of affidavit Ex.PW-5/A. According to him at the time of death of deceased, his age was 75 years. According to him, deceased had two Kothis on the spot. 9 16. What emerges from the statement of PW-2 Mohan Lal and PW-5 Devender Singh is that the deceased had two Kothis. However, as per PW-4, deceased had only one Kothi. According to PW-5, age of the deceased at the time of death was 75 years. However, PW-4 did not know whether at the time of death of deceased, his age was more than 40 years or not. Defendants are class-II heirs of the deceased. Deceased has died issueless. It has come in the evidence that defendants used to look after him. 17. Plaintiff has pleaded in the plaint that he has inherited the property on the basis of ‘will’. According to him, the ‘will’ was executed in his favour by the deceased out of love and affection since he was looking after him. Neither the scribe of the will nor marginal witnesses has been produced by the plaintiff to prove the ‘will’ in question. According to the plaintiff, the will was lying in the locker of the State Bank of Patiala, Kasauli. However, when the locker was opened, no “will” was found. 18. As far as possession of the suit property is concerned, the plaintiff himself has admitted that defendant No.3 in connivance with defendants No.1 and 2 had put his locks on the suit property. Thus, it is evident that when the suit was instituted on 20.2.2007, plaintiff 10 was not in possession of the suit property. The revenue entries qua the suit property are in favour of the defendants. It also prima facie proves that they are in possession of the suit property, as per Jamabandi Ex.PW- 1/D and PW-1/E. 19. Defendants are the only surviving brothers of the deceased. Since the defendants are in settled possession of the suit property, learned first appellate court has rightly come to a conclusion that they were entitled to permanent injunction against the plaintiff. Thus, there is no illegality in the findings recorded by the first appellate court whereby the plaintiff has been restrained from causing interference in possession of the suit property. The plaintiff has failed to prove that he has inherited the suit property from deceased Dileshwar Prit Singh Rarewala. The questions raised by the plaintiff in this Regular Second Appeal are purely based on facts and there is no substantial question of law much less to say substantial question of law. CMP No.701/2011 20. In view of the observations and discussions made hereinabove, application under order 41 rule 27 is rejected. Moreover, Mr. B.C. Negi has failed to point out how these documents are relevant to the present lis. 11 These documents were in possession of the plaintiff when the suit was instituted, as such, he should have produced and proved these documents in accordance with law. 21. Accordingly, the first appellate court has correctly appreciated the oral as well as documentary evidence led by both the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 9.9. 2011 *awasthi*