REGULAR SECOND APPEAL No.85 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.85 of 2008 DATE OF DECISION: FEBRUARY 16, 2011 Mithu Singh and others .... Appellant Versus Sadhu Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Kanwal Goyal, Advocate for the appellants. Mr. Raman Mohinder, Advocate for respondents No.1 to 3. None for remaining respondents. * * * * L.N. MITTAL, J. (ORAL) By this common order, I am disposing of three appeals i.e. RSA No.87 of 2008 titled as Gurmit Kaur @ Hardev Kaur versus Sadhu Singh and others; RSA No.88 of 2008 also titled Gurmit Kaur @ Hardev Kaur versus Sadhu Singh and others; and RSA No.85 of 2008 titled Mithu Singh and others versus Sadhu Singh and others, because all these three appeals have arisen out of single suit. In RSA Nos.87 and 88 of 2008, Mithu Singh, Sukhmander Singh and Labh Singh defendants No.1 to 3, who are sons of Sher Singh-defendant No.4, were initially impleaded as proforma respondent Nos.5 to 7, but on their applications, they were transposed as appellants No.2 to 4. Sher Singh- defendant No.4 had since died and is represented by his legal heir-daughter Gurmeet Kaur @ Hardev Kaur as his legal representative. Original plaintiff- Middo has also since died and is represented by respondents No.1 to 4 as her REGULAR SECOND APPEAL No.85 OF 2008 -2- legal representatives. It is undisputed that plaintiff Middo and Kartar Kaur since deceased were sisters being daughters of Dhanna Singh. They were owners of the suit land to the extent of half share each. The dispute relates to inheritance of half share of Kartar Kaur in suit land and also regarding possession of the entire suit land. The plaintiff alleged that Kartar Kaur died issueless on 12.04.1987 and the plaintiff being her real sister is her sole legal heir. Defendant Nos.1 to 3 had no relationship with Kartar Kuar since deceased, but they have got sanctioned mutation No.4845 dated 06.07.1996 in their favour regarding half share of Kartar Kaur in the suit land on the basis of her alleged Will dated 07.05.1993. However, Kartar Kaur never executed any such Will. Defendants took forcible possession of the suit land. Accordingly, plaintiff sought relief of possession of the suit land, in addition to declaration that plaintiff is owner of the suit land and that alleged will of Kartar Kaur is forged and fabricated and mutation sanctioned on its basis is also not binding on the plaintiff. Defendants No.1 to 3 who were initially the sole defendants inter alia pleaded that Kartar Kaur executed will dated 21.03.1987 (registered on 07.05.1993) in favour of defendants No.1 to 3 and accordingly they have become owners of half share of the suit land, which was of Kartar Kaur and the mutation has been rightly sanctioned in their favour. It was also pleaded that their father Sher Singh was in actual possession of the entire suit land as tenant and, therefore, he is also necessary party of the suit. In view of the said plea of defendant No.1 to 3, Sher Singh was impleaded as defendant No.4. However, Sher Singh alleged that he is in adverse possession of the suit land for the last 22/23 years without payment of any rent or Batai and he has, therefore, become REGULAR SECOND APPEAL No.85 OF 2008 -3- owner of the suit land by adverse possession. Defendant No.4 accordingly filed counter claim seeking declaration to this effect. Various other pleas were also raised. Learned Civil Judge (Junior Division), Mansa vide judgment and decree dated 14.03.2006 decreed the plaintiff's suit and dismissed the counter claim of defendant No.4. Three separate first appeals were preferred against judgment and decree of the trial court, out of which two appeals were preferred by Sher Singh-defendant No.4 and the third by defendants No.1 to 3. Learned Additional District Judge, Mansa vide common judgment dated 01.08.2007 dismissed all the said three appeals. Feeling aggrieved, instant three second appeals have been preferred, two by legal representative of Sher Singh- defendant No.4 and third by defendants No.1 to 3. I have heard learned counsel for the parties and perused the case files. Learned counsel for Gurmeet Kaur (LR of defendant No.4) vehemently contended that defendant No.4 has been found to be in possession of the suit land as tenant and, therefore, decree for possession of the suit land could not be passed by Civil Court. Reliance in support of this contention has been placed on various judgments i.e. Mansu versus Shadi Ram, 1996(3) RCR (Civil) 438 of Hon'ble Supreme Court and judgments of this Court in Gopal Singh versus Jamiatpura Dheru Co-operative Joint Farming Society Ltd., 1988 PLJ (23) ; Arjan versus Baley, 1971 PLJ (855) and Kirpal versus Nathan, AIR 1984 Punjab and Haryana 308. Reference was also made to order dated 30.07.1984 Exhibit D-6 passed by Assistant Collector First Grade, Mansa in suit filed by Kartar Kaur deceased and Middo-plaintiff herein for recovery of rent amount from Sher Singh-defendant No.4 herein alleging him to be tenant REGULAR SECOND APPEAL No.85 OF 2008 -4- over the suit land. I have carefully considered the aforesaid contention but the same cannot be accepted. The contention is completely contrary and contradictory to the stand taken by defendant No.4 in his written statement and counter claim and, therefore, the aforesaid contention does not lie at the instance of defendant No.4 or his legal representative. Defendant No.4 set up claim of ownership by adverse possession and did not even remotely plead tenancy over the suit land. Consequently, he could not be heard to say that he being tenant over the suit land, decree for possession against him cannot be passed by the Civil Court. In fact defendant No.4 wants to have best of both the worlds but this is impermissible. In fact in his quest to have best of both the worlds, he has lost both. He set up title over the suit land by adverse possession. Having failed in the same, he wants benefit of alleged tenancy. Consequently, the aforesaid contention based on tenancy is unacceptable being completely beyond pleadings and rather contrary to pleadings of defendant No.4. For the same reason, judgments relied on by counsel for Gurmit Kaur-appellant in support of aforesaid contention cannot be accepted. In Mansu (supra), it was simply held that there is presumption of continuity of tenancy. In Gopal Singh (supra), it was held that suit for ejectment of tenant from agricultural land is not maintainable in Civil Court. In Arjan (supra), plaintiff had filed ejectment petitions in the Revenue Court under the Punjab Security of Land Tenures Act but the tenants raised question of title and, therefore, the plaintiff filed Civil Suits wherein plaintiff's title was upheld. In these circumstances, it was held that Civil Court must stay its hands after holding that the persons sought to be dispossessed were tenants. In Kirpal (supra), the defendant himself pleaded tenancy and the said plea was upheld and, therefore, it was held that Civil Court REGULAR SECOND APPEAL No.85 OF 2008 -5- had no jurisdiction to order dispossession of the defendant/tenant from agricultural land. Thus all these judgments are completely distinguishable on facts. In the instant case, defendants No.4 by setting up title by adverse possession has repudiated his alleged tenancy and, therefore, Civil Court only has jurisdiction to grant relief of possession of the suit land. Learned counsel for defendants No.1 to 3/appellants contended that Will set up by them has been duly proved by examining DW-2 Hardev Singh scribe of the will and Gurmail Singh one of the attesting witnesses of the Will. It was also contended that Hardev Singh DW-2 also personally knew testatrix of Kartar Kaur and, therefore, his testimony stands at par with testimony of attesting witness. Both Hardev Singh DW-2 and Gurmail Singh DW-3 signed the Will in presence of the testatrix who thumb marked the Will in their presence and thus mandatory provision of Section 63(c) of the Indian Succession Act, 1925 (in short, the Act) is fully complied with. It was also argued that Jeet Singh, the other attesting witness of the Will, has been examined in rebuttal evidence by the plaintiff, but onus of issue Nos.1 and 2 was on the plaintiff and, therefore, testimony of Jeet Singh examined in rebuttal evidence cannot be taken into consideration. It was also submitted that permission for leading secondary evidence of the Will was granted by the trial court and, therefore, the lower appellate court committed error in observing that permission for secondary evidence was not granted. It was also submitted that some contradictions in the statements of Hardev Singh DW-2 and Gurmail Singh DW-3 are natural as they stepped into the witness box after about 13 years of the execution of the will. On the other hand, learned counsel for respondents No.1 to 3 vehemently referred to different facts and circumstances for discarding the REGULAR SECOND APPEAL No.85 OF 2008 -6- Will, which shall be dealt with hereinafter. I have carefully considered the rival contentions. Statements of Hardev Singh DW-2 and Gurmail Singh DW-3 do not comply with the mandatory provisions of Section 63(c) of the Indian Succession Act. Both of them categorically stated that Jeet Singh the other attesting witness had not come in their presence and had not attested the Will in their presence. Thus there is not even an iota of evidence on record to depict that Jeet Singh attested the will in the presence of the testatrix or on receiving acknowledgment of her thumb impressions on the Will. Hardev Singh scribe of the Will cannot be equated with attesting witness of the Will. He, of course, stated that he personally knew the testatrix. However, his testimony in this regard has to be taken with a pinch of salt. He admitted that he was colleague Lecturer of Labh Singh-defendant No.3. Hardev Singh also admitted that he lived in different village and not in the village of the testatrix. Hardev Singh had also not scribed any other Will. He was not a regular deed writer or document writer, but was a Lecturer. He did not know when Kartar Kaur died. He rather stated that Kartar Kaur might have died 5-6 years after the execution of the Will. However, it is admitted case that Kartar Kaur died on 12.04.1987 i.e. just three weeks after the execution of the alleged Will. Sher Singh (who was father of the beneficiaries of the Will) as well as Labh Singh one of the beneficiaries of the Will were also present at the time of execution of the Will as stated by the Hardev Singh. Moreover, Hardev Singh stated that the testatrix was old lady lying on cot. However,Gurmail Singh stated that Kartar Kaur was aged 50 years and was sitting and doing work. Hardev Singh admitted that Sher Singh and his sons i.e. all the defendants were residing jointly. Hardev Singh and Gurmail Singh in examination-in-chief stated about presence of Jeet Singh attesting witness REGULAR SECOND APPEAL No.85 OF 2008 -7- also and about attestation of the will by him. However, in cross examination, both of them stated that Jeet Singh had not come to the spot in their presence and had not attested the Will in their presence. Gurmail Singh did not even know if the husband of Kartar Kaur was still alive or not. Gurmail Singh stated about his presence as a chance witness having gone to the house of defendants to borrow tractor, but he did not even ask for borrowing the tractor from the defendants on the pretext that they were busy in the scribing of the Will. However, after work of the Will had been finished, even then Gurmail Singh did not ask for the tractor. It is thus manifest that statements of both these witnesses have been completely shattered and impeached in their cross- examination and are, therefore, not sufficient to prove the execution of the Will by the testatrix. Their statements also do not comply with mandatory provision of Section 63(c) of the Indian Succession Act. The contention that statements of Jeet Singh PW-3 and other witnesses examined in rebuttal evidence by the plaintiff cannot be read, is not sustainable. Notwithstanding the language of issue Nos.1 and 2 and onus thereof placed on the plaintiff, the fact remains that defendants No.1 to 3 set up the alleged Will and, therefore, initial onus to prove the same was on defendants No.1 to 3. Consequently, plaintiff had right to lead evidence in rebuttal regarding the alleged Will. Statement of Jeet Singh cannot, therefore, be ignored. Jeet Singh PW-3 has categorically stated that Will was not executed by Kartar Kaur in his presence or in the presence of other witnesses Gurmail Singh and Hardev Singh. Therefore, testimony of Jeet Singh PW-3 further negatives the claim of defendants No.1 to 3 based on the alleged Will. Report of finger print expert Exhibit PX/7 has also been produced in evidence. The said expert witness was examined in criminal case lodged regarding REGULAR SECOND APPEAL No.85 OF 2008 -8- forgery of the Will. As per said report, alleged thumb impressions of Kartar Kaur on the Will in question were not her thumb impressions. However, this evidence cannot be read because the finger print expert has not been examined in the instant case as witness. Defendants No.1 and 4 had also moved bail application Exhibit PW-1/8 in the criminal case relating to the forgery of the Will. They pleaded therein that they are neither beneficiaries of the Will nor witnesses or scribe thereof. They also pleaded that they have no concern with the property of Middo i.e. plaintiff herein or the other lady i.e. Kartar Kaur. This admission by them would also negative the claim of defendants No.1 to 3 based on the alleged Will. In addition to it, defendant No.4 who is none else but father of defendants No.1 to 3 i.e. beneficiaries of the Will, also stated in his written statement as well in the witness box that no Will was executed by Kartar Kaur. This is also a very significant circumstance negativing the Will set up by defendants No.1 to 3. Here it may be added that according to the defendants' evidence, Sher Singh-defendant No.4 is residing jointly with defendants No.1 to 3. The alleged Will is dated 21.03.1987, but for the first time, it saw the light of the day on 07.05.1993 when it was got registered i.e. more than six years after the alleged execution of the Will as well as more than six years after the death of the testatrix. There is no explanation why the Will was kept hidden for such a long period after the death of the testatrix. There was also litigation between testatrix and defendant No.4. In view thereof also, there was no occasion for the testatrix to have executed the alleged Will in favour of sons of defendant No.4 with whom she was having litigation. REGULAR SECOND APPEAL No.85 OF 2008 -9- There was also no reason for executing the Will in favour of defendants No.1 to 3. They claimed themselves to be nephews of the deceased Kartar Kaur, but have failed to prove the same. Defendants No.1 to 3 also alleged that they were rendering service to the deceased. It has, however, come in evidence that the deceased Kartar Kaur was residing with the plaintiff and not with the defendants. This fact has been admitted by the defendants' witnesses. This fact has also been proved from ration cards and voters' lists depicting that deceased Kartar Kaur was residing with plaintiff Middo and was not residing with the defendants. Thus the alleged Will is not proved at all. It may be added that Hardev Singh DW-2 was colleague of Labh Singh defendant No.3 whereas Gurmail Singh DW-3 is from the family of defendants. Thus both these witnesses are interested witnesses. For the reasons aforesaid as well as for reasons noticed by the courts below, defendants No.1 to 3 have miserably failed to prove the alleged Will. The said will has been rightly discarded and consequently mutation sanctioned on its basis has also rightly been discarded by the courts below. Concurrent finding recorded by the courts below in favour of the plaintiff and against the defendants is fully justified by the evidence on record and is supported by detailed cogent reasons. The said finding is not shown to be perverse or illegal nor based on misreading or miss-appreciation of the evidence and therefore, the same does not warrant interference in second appeals. No question of law, much less substantial question of law, arises for determination in these second appeals. All the three appeals are devoid of merit and are accordingly dismissed. (L. N. MITTAL) JUDGE REGULAR SECOND APPEAL No.85 OF 2008 -10- 16th February, 2011 'raj'