R.S.A. No. 1858 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1858 of 2009 (O&M) Date of Decision : 4.5.2009 Swaran Lal .......... Appellant Versus Gurbaksh Lal & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Hitesh Kaplish, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No.5466-C of 2009 This is an application under Section 5 of the Limitation Act, for condoning the delay of 2 days, in filing the appeal. It has been averred in the application, that the delay has occurred due to the wrong calculation of period of limitation, because of different dates for preparation of copy, and delivery thereof. It is well settled, that party should not be allowed to suffer due to the fault of the counsel. Consequently, this application is allowed, delay of 2 days in filing the appeal is condoned. C.M. No.5467-C of 2009 This is an application for condoning the delay of 4 days in re- filing the appeal. R.S.A. No. 1858 of 2009 2 For the reasons stated in the application, the C.M. is allowed, the delay of 4 days in re-filing the appeal is condoned. R.S.A. No. 1858 of 2009 This regular second appeal is directed against the judgment and decree dated 28.11.2008, passed by the learned Courts below, decreeing the suit for possession, filed by the plaintiff / respondents. The plaintiff / respondents brought a suit for possession, on the basis of ownership. It was pleaded in the plaint, that prior to filing of the suit, the defendant had filed a suit for permanent injunction restraining the plaintiff / respondents from interfering in possession of the defendant / appellant, and the suit was decreed. It was ordered, that the defendant / appellant could not be dispossessed, except with due process of law. The suit was contested, wherein a plea was taken, that the defendant/ appellant was in possession of the property, as owner thereof. It is not in dispute between the parties, that Puran Singh was the original owner of the property. He executed a Will on 5.2.1979, in favour of Dharama Chand, who was his only son, stipulating therein, that after his death the property would revert to his three daughters, as Dharam Chand was issueless. The defendant set up another Will dated 4.6.1979, said to have been executed by Dharam Chand, bequeathing the property, in favour of the defendant / appellant. The learned Courts below have recorded a concurrent finding, that defendant / appellant had failed to prove the Will dated 4.6.1979, said to have been executed by Dharam Chand, in favour of defendant / appellant. This dispute regarding Will dated 4.6.1979 need not be gone R.S.A. No. 1858 of 2009 3 into because, even if, the Will is proved still the same could not vest any right in the property, in favour of the defendant / appellant, as Dharam Chand was not holding the property as an absolute owner. Under the Will executed by Puran Singh, he was having only right in estate during his life time. The learned counsel appearing on behalf of the appellant contends, that the appeal raises the following substantial questions of law :- 1. Whether the authority of Dharam Chand to execute the Will, after having inherited the property could be restricted ? 2. Whether the learned Courts below could reject the duly proved Will dated 4.6.1979 executed by Dharam Chand ? In support of the substantial question of law, the learned counsel for the appellant contends, that by way of Will, the property was bequeathed in favour of Dharam Chand, thus, he inherited it as an absolute owner thereof. No restriction could be placed on his right. The learned Courts below, therefore, committed an error in rejecting the Will set up by the defendant / appellant. It is also the contention of the learned counsel for the appellant, that the learned Courts below wrongly held, that the Will was not proved, though, the same was duly proved by examining the attesting witnesses. The minor discrepancies in their statements could not be a ground to reject it. On consideration, I find no force in the contention raised by the learned counsel for the appellant. Puran Chand by way of Will had only given life estate to Dharam Chand, with a clear stipulation, that after his R.S.A. No. 1858 of 2009 4 death his property would revert back to his three daughters. In view of this, the learned Courts below were right in holding, that Dharam Chand could not transfer the property inherited from Puran Singh, in favour of the defendant / appellant. The substantial questions of law raised, therefore, are answered against the appellant. No ground for interference is made out. Dismissed. 4.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE