RSA No.1652 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1652 of 2010 (O & M) Date of Decision: 09.11.2010. Rakesh Saini and others .....Appellants Versus Smt. Usha and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R.S. Bajaj, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.4927-C of 2010 Allowed as prayed for. Main Appeal. Plaintiffs-Rakesh saini etc., having remained unsuccessful in both the Courts below, have filed the instant second appeal. Plaintiffs No.1 and 2 are sons of Charanjit Kumar whereas plaintiff No.3 is widow of Charanjit Kumar. Gopal Chand was father of Charanjit Kumar and Krishan Kumar-defendant No.3. Leela Wanti was wife of Gopal Chand i.e. mother of Charanjit Kumar and Krishan Kumar. Plaintiffs' case is that suit property, which was owned by Gopal Chand, was, on his death, inherited by his three heirs i.e Charanjit Kumar, Krishan Kumar and Leela Wanti in equal shares i.e. 1/3rd share each and, therefore, plaintiffs (who are successors of Charanjit Kumar) have 1/3rd share in the suit property. However, RSA No.1652 of 2010 (O & M) -2- defendant No.1 (who is wife of defendant No.3), claiming herself to be absolute owner of the suit property in view of Will allegedly executed in her favour by Leela Wanti, sold the suit property to defendant No.2 vide two sale deeds dated 28.05.1998 and 22.07.1998. The said sale deeds are invalid qua 1/3rd share of the plaintiffs in the suit property. The plaintiffs also sought partition of the suit house. Permanent injunction was also claimed. Defendants alleged that Gopal Chand had executed registered Will dated 10/11.10.1982. in favour of Leela Wanti, who became exclusive owner of the suit property under the Will. Leela Wanti bequeathed the suit property to defendant No.1 and accordingly defendant No.1 became exclusive owner of the suit property and accordingly defendant No.1 sold the suit property to defendant No.2 vide two sale deeds which are legal and valid. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 18.04.2002 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 20.08.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that Will dated 10/11.10.1982 allegedly executed by Gopal Chand in favour of Leela Wanti has not been proved either in the present suit or in the previous suit which had been instituted by Leela Wanti and, RSA No.1652 of 2010 (O & M) -3- therefore, Leela Wanti was not exclusive owner of the suit property and plaintiffs have 1/3rd share therein as plaintiffs' predecessor Charanjit Kumar inherited 1/3rd share in the suit property from his father Gopal Chand being one of the three legal heirs of Gopal Chand. The contention, apparently attractive, cannot be accepted. Previous suit by Leela Wanti was filed regarding agricultural land and not regarding the present suit property. In that suit, Will dated 10/11.10.1982 executed by Gopal Chand was admitted by the parties. Under the Will, agricultural land was given to all the three heirs i.e Charanjit Kumar, Krishan Kumar and Leela Wanti in equal shares i.e 1/3rd share each and decree was accordingly passed in that suit. It is thus manifest that plaintiffs' predecessor Charanjit Kumar himself admitted the said Will in the previous suit and was given 1/3rd share in the agricultural land on the basis of the said Will. Consequently, now the plaintiffs cannot repudiate the said Will and turn around to contend that the Will has not been proved. In view of the said Will which was admitted in the previous suit, Leela Wanti was exclusive owner of the present suit property and Leela Wanti bequeathed the same in favour of defendant No.1 and, therefore, plaintiffs have no right, title or interest therein. Plaintiffs have, therefore, been rightly non-suited by the Courts below. There is concurrent finding by both the Courts below against the plaintiffs/appellants. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The said finding cannot be said to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of RSA No.1652 of 2010 (O & M) -4- any merit and is accordingly dismissed in limine. 09.11.2010. ( L. N. MITTAL ) A. Kaundal JUDGE