IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2209 of 2009 Date of Decision: 27.5.2009 Bashir Kaur. ....... Appellant through Shri Sukhbir Singh, Advocate. Versus Amarjit Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 25.8.2007 and 9.3.2009 passed respectively by the Additional Civil Judge (Senior Division), Amritsar (hereinafter referred to as `the trial Court') and the Additional District Judge, Amritsar (described hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff-appellant were dismissed. Initially, the appellant had filed suit against Amarjit Singh, Sarwan Singh, Dalip Kaur alias Gurdip Kaur, sons & wife of Lal Singh; Ajit Singh son of Gujjar Singh, Sawinder Singh alias Pappu, Hira Singh, sons of Ajit Singh; Chanda, Ranjit Singh, Daljit Singh, wife and minor sons of Lal Singh for declaration to the effect that she was the owner in possession of R.S.A.No.2209 of 2009 -2- .... property no.62 fully detailed in the head note of the plaint (called hereinafter as `the suit property') and that the sale deed executed by Amarjit Singh and Sarvan Singh in favour of Ajit Singh, Sawinder Singh and Hira Singh was null & void. She had also sought a decree for permanent injunction restraining the persons arrayed as defendants in the suit from taking forcible possession of the suit property in any manner. It was pleaded that the appellant was living in the suit property since 13.2.1973 along with her family; that she was the sister of late Lal Singh, who was owner of the suit property and had gone to Pune; that she had occupied the suit property on 13.2.1973 and constructed a room over there and also raised a boundary wall all around; that Lal Singh had two wives from whom two sons each were born; that none of the defendants raised any objection to the raising of construction over the suit property and she was living peacefully without any interruption; that before his death, Lal Singh had executed a legal and valid Will in favour of the appellant bequeathing the suit property on 20.11.1990 and she became owner in possession thereof after his death in the year 1992 at Pune; that even otherwise, she had become owner in possession of the suit property by way of adverse possession against true owner – Lal Singh being hostile, uninterrupted and continued since 13.2.1973; that she had ousted defendant nos. 1 to 3 and 7 to 9 from the suit property and they were no longer co- owners thereof; that she had come to know that Amarjit Singh and Sarwan Singh sons of Lal Singh had sold the suit property to Ajit Singh, Swinder Singh and Hira Singh, who were arrayed as defendant nos. 4 to 6, although R.S.A.No.2209 of 2009 -3- .... they had no right, title or interest therein and that now all the defendants had been threatening her to dispossess forcibly from the suit property. Notice of the suit was given to the persons arrayed as defendants. Ajit Singh and Swinder Singh, defendant-respondent no. 4 & 5 put in appearance and resisted the suit. They denied that the appellant was in possession of the suit property since 1973. Her ownership was also denied. It was submitted that Wassan Singh son of Banta Singh had purchased 10 marlas of land bearing khasra nos. 211 min and 368 min situated in village Makhanwindi vide registeed sale deed dated 2.3.1973 from Nazar Singh son of Sudagar Singh; Smt.Mohinder Kaur wife of Gurmej Singh and Sukhdev Singh son of Gurmej Singh for Rs.1000/-; that Wassan Singh sold the above said land in which he had constructed a house along with the boundary wall to Lal Singh son of Maghar Singh for Rs.3000/- vide registered sale deed dated 28.7.1982; that Lal Singh was in actual and physical possession of the suit property; that Ajit Singh was having inadequate space for residence and habitation of his family members and so, he approached Lal Singh to give him the suit property for use and occupation in January,1983, who agreed to hand over the same to Ajit Singh and delivered its possession to him being his close relative; that since January,1983, Ajit Singh was in actual physical and continuous possession of the suit property; that they were also tethering their cattle in the suit property; that it was very strange that the appellant was occupying the suit property since 13.2.1973 whereas Lal Singh had purchased it on 28.7.1982 R.S.A.No.2209 of 2009 -4- .... and was not owner thereof; that the appellant had nothing to do with the disputed property as neither she was owner thereof nor was in its possession; that the Will dated 28.11.1990 was false, fabricated and a sham document without any legal validity and was created after the death of Lal Singh. With these averments, respondent nos. 4 & 5 prayed that the suit be dismissed. However, vide her statement made on 12.11.1998, the appellant gave up claim against the remaining persons arrayed as defendants and the suit against them was dismissed as withdrawn. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 3. Whether the suit is not maintainable?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the suit is bad for non-joinder of necessary parties?OPD 6. Whether the plaintiff has not come to the Court with clean hands?OPD 7. Whether deceased Lal Singh executed valid Will in favour of the plaintiff, if so, its effect/OPP R.S.A.No.2209 of 2009 -5- .... 8. Relief. Both the Courts returned a finding that the appellant was not in possession of the suit property. Regarding the Will also, a finding was recorded that it was a fabricated document. Thus, the suit and the appeal of the appellant were dismissed. This has resulted in the filing of the present appeal. Learned counsel for the appellant has contended that the findings recorded by the Courts below are erroneous. He further contended that even if the Will was held to be a fabricated document, the possession of the appellant over the suit property was established and, therefore, she was entitled to the relief of injunction. It was argued that the findings of the Courts below are perverse and have been arrived at by complete misreading of evidence. According to the learned counsel for the appellant, the following questions of law arise for consideration of this Court:- 1. Whether the Courts below had erred in holding that the Will dated 28.11.90 as suspicious document in view of the facts and circumstances of the case? 2. Whether the Courts below had erred in relying upon Ex.D1 and D2 (sale deeds) especially when the said sale deeds do not connect with the house in question? 3. Whether the Courts below have erred in not considering the documents on record such as Tasdeeknama, Voter List, Ration Card, Identity Card of the plaintiff and site plan and the statement of Gurdip Singh, Sarpanch, Kashmir Singh and R.S.A.No.2209 of 2009 -6- .... Kewal Singh? 4. Whether the Courts below had erred in holding the suit as not maintainable? I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. In my opinion, the Will dated 28.11.1990 has rightly been discarded by the Courts below for the reason that the signatures of Lal Singh on this document did not tally with his signatures existing on other documents, such as mortgage deed, Exhibit DW5/1, which was admittedly executed by Lal Singh. That apart, the Courts below have also rightly reasoned that there was no mentioning of other legal heirs of the deceased- Lal Singh in the Will and since the deceased was having three plots, only one plot, i.e., the suit property, was mentioned in the Will, which is said to have been bequeathed by him to the appellant and there was no mention of other two plots therein. All these were rightly taken to be suspicious circumstances to discard the Will. While examining the authenticity of the Will, these factors assume great significance as they reveal the mind of the testator. A person, who is bequeathing his property and disinheriting others from the same, normally assign reasons for doing so. It is true that mere absence of such a factor should not lead to an inference that the Will is not a genuine document, but if there are more than one properties in the name of the testator and only one property is singled out to be willed away to one person with complete silence on the other assets and disinheritance of other heirs, R.S.A.No.2209 of 2009 -7- .... then certainly these factors show that the Will is not a document which can be accepted to be an authentic document expressing the desire of the testator. In the instant case, admittedly, the deceased was having other properties as well and was survived by a number of legal heirs, i.e., two wives and four children. Therefore, in my view, the Will in question is not a genuine document. It is also to be noticed that the appellant was claiming ownership and possession of the suit property on the basis of the Will, which, as observed earlier, is not an authentic document. In this view of the matter, the next question that is to be determined is as to whether the appellant was in possession of the suit property since 1973 as alleged by her. There is no evidence on record to suggest that she was in occupation of the suit property since 1973. While cross-examining DW8-Ajit Singh, it was suggested to him by the appellant herself that it is correct that he is residing in the suit property in the capacity of relative of Lal Singh and subsequently, another suggestion was put to him. This obliquely means an admission on the part of the appellant that the plea of respondent nos. 4 & 5 regarding Ajit Singh being in possession of the suit property is correct. Even otherwise, the finding regarding possession is a question of fact which has been determined by the Courts below. Thus, there is no misreading of evidence. Consequently, the questions of law that have been formulated by the learned counsel for the appellant do not arise for consideration. The Will in question has been correctly interpreted to be a fabricated document R.S.A.No.2209 of 2009 -8- .... and in so far as Exhibits D1 and D2, the sale deeds, are concerned, they do not enhance the case of the appellant. Concededly, there is a sale deed, Exhibit D1, in favour of Wassan Singh, who ultimately sold the suit property to Lal Singh. It is not the case of the appellant that the suit property does not belong to Lal Singh. As against this valid piece of document, the appellant had merely set up a Will which was not found to be genuine. Looking at it from any angle, the appellant has failed to establish her case. Accordingly, the appeal is dismissed being without any merit. May 27,2009 ( Mahesh Grover ) “SCM” Judge