R.S.A. No. 4125 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4125 of 2009 (O&M) Date of decision : 30.6.2010 ... Ram Lal ................Appellant vs. Pawan Kumar and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. G.C. Gupta, Advocate for the appellant ... K.C. Puri, J. (Oral) This is second regular appeal preferred by the defendant- appellant against the judgment dated 21.2.2009 passed by Sh. R.N. Bharti, Additional District Judge, Ambala, vide which the appeal preferred by the present appellant against the judgment dated 3.5.2008 passed by Sh. Jaibir Singh, Civil Judge (Junior Division), Ambala Cantt., was dismissed. Briefly stated, Pawan Kumar – son, Leela Wati – widow of Veer Bhan and Ram Chand son of Natholi Ram, filed a suit for declaration to the effect that they are owners in possession of the house as described in the heading of the plaint and seeking permanent injunction restraining the defendants from interfering into the R.S.A. No. 4125 of 2009 -2- peaceful possession of the plaintiffs in any manner. The case of the plaintiffs set forth in the plaint is that Ram Parshad and Dhauji Ram were the owners and in possession of the property in question. On the death of Veer Bhan the father of plaintiff No.1 and husband of plaintiff No.2 and Natholi Ram son of Dhouji Ram, father of plaintiff No.3 became the owners and in possession of the suit property. This property remained in occupation of the tenants namely Savitri Devi w/o Badam Singh, Amar Nath son of Ganeshi and Thakar Dass and the rent is being realised from the tenants by the plaintiffs regularly. Since the share of plaintiffs was undivided so Veer Bhan son of Ram Parshad filed a suit for partition against Nathouli Ram son of Dhouji Ram. The said suit bearing No.147 dated 21.5.1989 was decreed from the Court of Sh. Krishan Kumar, the then learned Civil Judge (Junior Division), Ambala Cantt. on 16.3.1996. As both the brothers died, the plaintiffs are the legal heirs and as such final decree could not be passed. Defendants No. 1 and 2 have threatened to take possession of the suit property by force and methods other than due process of law. Defendants are alleging that Veer Bhan son of Ram Prashad executed a Will in favour of defendant No.1. As a matter of fact no such Will was executed by Veer Bhan. Upon notice defendant No.1 contested the claim of the plaintiffs by filing the written statement. However, none appeared on behalf of defendant No.2 and he was proceeded against ex parte. Defendant No.1 in the written statement has raised preliminary objections regarding the maintainability, valuation, bar of limitation R.S.A. No. 4125 of 2009 -3- and that of estoppel. On merits, it is alleged that Veer Bhan has executed a Will dated 15.12.1990 of his share in property in question , in favour of defendant No.1and on that account he became absolute owner of that property. Defendant No.1 has sold his share to Ram Sarup – defendant No.2 vide registered sale deed dated 15.7.1998. It is denied that plaintiffs have been realising the rent. Replication was filed by the plaintiffs reiterating and reasserting the version of the plaint, while controverting the stand taken by defendant No.1 in the written statement. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are entitled to the decree for declaration with consequential relief of permanent injunction, as prayed for? OPP 2. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 3. Whether the suit of the plaintiffs is time barred? OPD 4. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD 5. Whether the suit is under valued for purpose of Court fee and jurisdiction? OPD 6. Relief. The plaintiffs examined PW-1 Vinod Bhardwaj, DRK, Judicial Record Room, PW-2 Mahesh Kumar, Clerk, PW-3 Shamsher Singh, PW-4 Thakur Dass, PW-5 Ami Chand, PW-6 Lajwanti, PW-7 Savitri Devi, PW-8 Ghansham, PW-9 Ghasita Singh, PW-10 Leela R.S.A. No. 4125 of 2009 -4- Wati, PW-11 Ram Chander, besides tendering certain documents. In rebuttal, defendants examined DW-1 Naresh Kumar, DW-2 Pawan Kumar and DW-3 Ram Lal and closed their evidence after tendering certain documents. Learned trial Court returned the finding on all the issues in favour of the plaintiffs and consequently, decreed the suit of the plaintiffs. Feeling dissatisfied with the above said judgment, one of the defendant Ram Lal, preferred the appeal. The said appeal was dismissed vide judgment dated 21.2.2009 passed by Additional District Judge Ambala. Feeling dissatisfied with the both the judgment dated 3.5.2008 passed by Civil Judge (Junior Division), Ambala Cantt and judgment dated 21.2.2009 passed by Additional District Judge, Ambala, the present regular second appeal has been filed. According to the grounds of appeal, it is pleaded that following substantial questions of law have arisen in this case:- 1. Whether the appellant has become the absolute owner of the demised premises in view of the Will executed by Veer Bhan? 2. Whether the appellant and Ram Sarup who had purchased the said house for a consideration of Rs.50,000/- are entitled to be declared as owners of the demised premises? I have heard counsel for the appellant and have also gone through the record of the case. The controversy in the present appeal revolves around the R.S.A. No. 4125 of 2009 -5- execution of the Will alleged to be executed by Veer Bhan in favour of Ram Lal -appellant. Both the Courts below have given a concurrent finding that Will dated 15.12.1990 alleged to be executed by Veer Bhan is not proved on the file and is surrounded by suspicious circumstances. Admittedly, Ram Lal -appellant is not related to Veer Bhan in any manner. Both the Courts below have returned the finding that there was no reason for Veer Bhan to ignore his own son and wife from the property. The original Will has not seen the light of day. The appellant has realized that in case original Will is produced and that is proved to be forged one, in that case, he could be criminally prosecuted and has wrongly taken the stand that Will has been lost. However, the fact remains that the Will dated 15.12.1990 has not been proved in accordance with the law, on the file. One another circumstance, which militate against the case of the appellant is that according to the defendant-appellant, he had sold the property in favour of Ram Sarup. Ram Sarup has not appeared before the trial Court or Ist Appellate Court and even has not challenged the judgments of both the Courts below before this Court. Ram Lal could convey the title in favour of Ram Sarup, which he possess. Since Ram Lal himself was not owner of the property and as such sale deed dated 15.7.1998 executed by Ram Lal in favour of Ram Sarup does not confer any legal right in favour of Ram Sarup. In fact both the questions raised by the appellant are not the substantial questions of law arising in the present case. Only the question of fact regarding execution of Will dated 15.12.1990 is R.S.A. No. 4125 of 2009 -6- involved in the present lis. In view of the concurrent finding of both the Courts below, the appellant could not challenge the judgment of both the Courts below on questions of fact, regarding the validity and execution of Will. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 30.6.2010 Judge chugh