REGULAR SECOND APPEAL No.846 OF 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.846 of 2011 DATE OF DECISION: FEBRUARY 21, 2011 Ram Dev .... Appellant Versus Krishan Kanta & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Arun Gosain, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.2324-C of 2011 Allowed as prayed for. Main Case: Defendant No.1 Ram Dev has filed the instant second appeal. Suit was filed by Kulbhushan-plaintiff (since deceased and represented by respondents No.1 and 2 as his legal heirs) against the appellant-defendant No.1 and against respondents No.3 to 10. Dr. Major Bansi Lal Awasthi (father of the parties) was owner of residential bungalow in suit and was also in possession of a shop as tenant. He also had movable properties mentioned in the plaint. Plaintiff and defendants No.1 to 7 are sons whereas defendants No.8 and 9 are daughters of said Bansi Lal. The plaintiff claimed to be sole successor of Dr. Major Bansi Lal Awasthi on the basis Will dated 08.01.1991. Defendant No.1 claimed to be sole successor of Dr. Major Bansi Lal Awasthi on the basis of Will dated 18.03.1990 REGULAR SECOND APPEAL No.846 OF 2011 -2- Defendant No.2 claimed natural succession in favour of all the parties i.e. 1/10th share each. Defence of defendant No.9 was struck off. Other defendants were proceeded ex parte. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 29.01.1998 partly decreed the plaintiff's suit holding him to be owner to the extent of 1/10th share in the suit property on the basis of natural succession. Will set up by plaintiff was discarded for various reasons including the fact that the said Will was obtained on the day the testator Dr. Major Bansi Lal Awasthi died (only a few hours before his death). Will set up by defendant No.1-appellant was held to have been revoked by the testator. Three first appeals were preferred against judgment and decree of the trial court i.e. one appeal by legal representatives of defendant No.2 Budh Dev, since deceased, one appeal by plaintiff Kulbhushan and one appeal by defendant No.1 Ram Dev. Learned Additional District Judge, Gurdaspur vide common judgment dated 25.11.2010 dismissed all the three appeals. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Paramjit Singh, Advocate as PW-1 proved notice dated 08.09.1990 Exhibit P-2 sent by him at the instance of testator Dr. Major Bansi Lal Awasthi to defendant No.1 regarding revocation of Will dated 18.03.1990 Exhibit D-1 set up by defendant No.1. The said notice was sent by Registered Post vide postal receive Exhibit P-3. The said notice is deemed to have been delivered to defendant No.1. Even defendant No.1 while appearing in the witness box could not deny the receipt of the said notice. He rather stated that he did not recollect if the said notice was received by him or was replied to by him or not. REGULAR SECOND APPEAL No.846 OF 2011 -3- On the other hand, counsel for defendant No.1-appellant pointed out that it was pleaded in the written statement that the said notice had been replied by defendant No.1. It would depict that defendant No.1 had actually received the said notice. However, alleged reply sent by him to the said notice has not seen the light of the day. On the contrary, as noticed hereinbefore, in the witness box, the defendant No.1 stated that he did not recollect if he had sent any reply or not. However, even assuming that he had sent any reply, it would not make any difference because the testator revoked the Will dated 18.03.1990 Exhibit D-1, which was in favour of defendant No.1, by sending notice dated 08.09.1990. Consequently, the said Will has been rightly discarded by the courts below. Learned counsel for the appellant contended that Paramjit Singh, Advocate PW-1 did not produce any Vakalatnama in his favour executed by testator Dr. Major Bansi Lal Awasthi. The contention does not help the appellant, because Paramjit Singh, Advocate stated that he had obtained Vakalatnama from Dr. Major Bansi Lal Awasthi but the said Vakalatnama had been misplaced on account of shifting of his office. The said witness was examined almost three years after he had sent the aforesaid notice. Consequently, if Vakalatnama executed by testator in his favour had been misplaced, it cannot be said that the notice was sent without authority. Even otherwise, there was no reason why Mr. Paramjit Singh, Advocate would have sent any such notice without authority from the testator Dr. Major Bansi Lal Awasthi. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding by the Courts below discarding the Will set up by defendant No.1-appellant in view of its revocation by the testator is fully REGULAR SECOND APPEAL No.846 OF 2011 -4- justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on mis- reading or mis-appreciation of evidence. Consequently the said finding does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal being bereft of any merit is dismissed in limine (L. N. MITTAL) JUDGE 21st February, 2011 'raj'