RSA No.2586 of 1985 (O&M) [ 1 ] ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2586 of 1985 (O&M) Date of decision:20.04.2011. Harbans Singh and others ... Appellants Vs. German Singh (dead) through his LRs and others ... Respondents CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.S. Rakkar, Senior Advocate, with Mr. P.S.Bath, Advocate, for the appellants. Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate, for respondent Nos.1 to 5. ***** Rakesh Kumar Jain, J. This appeal has been filed by defendant Nos.4 to 6 against the judgment and decree of both the Courts below by which suit filed by the plaintiffs for possession has been decreed. Before giving facts of the case, it would be relevant to know as to who are the parties to the suit and for that purpose, a pedigree table is reproduced as under: - RSA No.2586 of 1985 (O&M) [ 2 ] ****** Attar Singh | Surain Singh (whose inheritance is in dispute) | |-------------------------------------------------------------------------------------------------------------- | | | | | Dasondha Gurmej Ajaib Smt. Naino alias Smt. Ballo alias Singh Singh Singh Labh Kaur Pritam Kaur (deceased) Deft No.1 Deft No.2 Deft No.3 Plff No.5 | | | | | | | -------------------------------------- | | | | | | | Harbans Gurpal Dial | | Singh Singh Singh | | Deft No.4 Deft No.5 Deft No.6 | | | | ---------------------------------------------------------- | | | | | | German Gurmukh Ajit Randhir | Singh Singh Singh Singh | Plff No.1 Plff No.2 Plff No.3 Plff No.4 | | --------------------------------------------------------------------------------------- | | | | | Gurdip Singh Hardip Singh Jit Kaur Gurdip Kaur Amar Kaur Deft No.7 Deft No.8 Deft No.9 Deft No.10 Deft No.11 Plaintiff Nos.1 to 4 are the sons of plaintiff No.5, who is daughter of Surain Singh, whose property is in dispute. They filed a suit for possession of land measuring 117 kanals 9 ¼ marlas i.e. 1/4th share of land measuring 469 kanals 17 marlas or in the alternative, for possession of 93 kanals 19-2/3 marlas i.e. 1/5th share of land measuring 469 kanals 17 marlas. It was alleged that Surain Singh executed a Will dated 12.03.1978 in his sound disposing mind bequeathing his property in favour of plaintiff Nos.1 to 4 (1/4th share); Dasondha Singh/ defendant No.1 (1/4th share); Gurmej Singh/ defendant No.2 (1/4th share) and Ajaib Singh/ defendant No.3 (1/4th share). After the death of Surain Singh on 25.08.1978, defendant No.1 to 6 (which includes three sons of Surain Singh and three sons of Ajaib Singh/ defendant No.3) took forcible possession of the land in dispute on the ground that Surain Singh had executed a Will dated 09.09.1969 in their favour and RSA No.2586 of 1985 (O&M) [ 3 ] ****** had also suffered a decree in favour of defendant Nos.4 to 6 on 25.08.1972 in Civil Suit No.41 of 1972. The plaintiffs alleged that the said decree has been obtained by misrepresentation and fraud as Surain Singh had never appeared in the Court and even otherwise, Surain Singh never partitioned his land and was not competent to part with the property in favour of defendant Nos.4 to 6 by way of said decree and as such it was invalid and ineffective. Defendant Nos.1 and 2 filed their separate written statement in which they did not admit execution of the Will in favour of the plaintiffs. They, however, propounded a Will dated 09.09.1969. Defendants Nos.4 to 6 set up their own case with regard to execution of the Will in their favour by Surain Singh and denied the Will in favour of the plaintiffs. It was pleaded that Surain Singh had parted with possession of land measuring 270 kanals 18 marlas in their favour by way of partition and they are in possession of that portion. It was also alleged that decree for possession of the said land was passed in their favour on 25.08.1972 and are owners of that land. Insofar as the Will dated 09.09.1969 is concerned, they followed defendant Nos.1 and 2 in that regard. Defendant Nos.7 to 11 did not contest the suit. On the pleadings of the parties, following issues were framed: 1. Whether Surain Singh deceased executed a valid Will in favour of the plaintiff Nos.1 to 4 and defendant Nos.1 to 3? OPP 2. Whether Surain Singh executed a valid Will in favour of defendant Nos.1 to 6? OPD 1 to 6 3. Whether defendant Nos.4 to 6, got a decree dated 25.08.1972, as alleged “If so, its effect? OPD 4 to 6. 4. If issue No.3 is proved, whether the decree dated RSA No.2586 of 1985 (O&M) [ 4 ] ****** 25.08.1972, is null and void as alleged in para No.4(i) of the plaint? OPP 5. Whether the plaintiffs have locus-standi to sue? OPD 6. Whether the suit is not maintainable in the present form? OPD 4 to 6. 7. Whether the suit is bad for multifariousness? OPD 4 to 6. 8. Whether the suit is barred by the principles of res judicata? OPD 4 to 6 9. Whether the suit is infructuous as alleged? OPD 4 10.Whether the order dated 19.06.1980 passed by the Assistant Collector Ist Grade, Jalandhar cannot be challenged in Civil Court? OPD 4 to 6. 11.Whether the suit is properly valued? OPD 12.Relief. The learned trial court while deciding issue No.1 held that the Will dated 12.03.1978 (Ex.P-1) by which Surain Singh had bequeathed his property in favour of plaintiff Nos.1 to 4 and defendant Nos.1 to 3, is valid. The other Will dated 09.09.1969 propounded by the defendants was not proved, therefore, issue No.2 was decided against them. Issue Nos.3 and 4 were clubbed together and were returned in favour of the plaintiffs and against the defendants. Issue Nos.5 to 11 were decided against the defendants. In nutshell, the suit of the plaintiffs was decreed. The judgment of the trial court was challenged only by defendants No.4 to 6, who assailed the findings on issue Nos.1 to 5 before the learned first Appellate Court. While deciding issue No.1 which pertains to the validity of the Will executed by Surain Singh in favour of the plaintiffs on 12.03.1978, it was observed that it was attested by the two witnesses, RSA No.2586 of 1985 (O&M) [ 5 ] ****** namely Puran Singh Lambardar, Chint Ram, and was scribed by Mast Ram, who were examined as PW3, PW4 and PW2, respectively. It was also observed by the learned Appellate Court that “learned counsel for the appellants did not raise any serious argument on this issue and impliedly conceded that there is no snag in the evidence of execution of the Will, yet for the sake of satisfaction of conscience, I have looked into the evidence and surrounding circumstances”. Again the learned Appellate Court had observed that “it bears repetition that on behalf of the defendants/appellants, no snag in the evidence was pointed out. It was held that the Will (Ex.P-1) has been duly proved by the attesting witnesses and it's mere non-registration is not fatal for its validity. Thus, the finding on issue No.1 was upheld by the learned Appellate Court". In respect of issue No.2, it was observed that Sohan Singh DW-8 is the only person who deposed about the Will, who had stated that it was neither executed in his presence nor Surain Singh signed it in his presence. As a matter of fact, he had stated that he never attested any Will of Surain Singh and had just signed the document on the asking of Mehar Singh. In this regard, it was observed by the learned Appellate Court that as the identifying witness was not present at the time of actual execution of the document, simple signatures of Sohan Singh and certificate of Sub Registrar will not prove the execution of the Will. Thus, it was held that the Will dated 09.09.1969 (Ex.D1) is not proved in accordance with law and as such the finding of the trial Court was affirmed by the learned Appellate Court. Issue Nos.3 and 4 were taken up together which pertains to the judgment and decree dated 25.08.1972 for possession of 270 kanals 18 marlas. The RSA No.2586 of 1985 (O&M) [ 6 ] ****** defendants have placed on record only the copy of the judgment (Ex.D3) but the other documents could not be brought on record as the record of the suit was destroyed in fire. The learned Appellate Court decided these two issues also against the defendants holding that the judgment (Ex.D3) is not proved in accordance with law and it is ineffective on the right of the plaintiffs. So far issue No.5 is concerned, it was held that the suit is maintainable and cumulative effect of the entire discussion was dismissal of the appeal filed by defendant Nos.4 to 6. Aggrieved against the judgment and decree of both the Courts below, defendant Nos.4 to 6 have filed the present appeal which was admitted on 24.09.1985 and notice in the application i.e. C.M.No.2584-C of 1985 for stay was issued. On 8.11.1985, the application was disposed of by observing as under: - “After hearing the learned counsel for the parties, dispossession is stayed on the condition that the appellant furnish security for mesne profits to the satisfaction of the executing Court. Meanwhile, partition proceedings may continue. The appellant and the defendants (respondents) are restrained from alienating the suit land in any manner during the pendency of the appeal.” During the pendency of this appeal, the defendants and one of the plaintiff namely, German Singh entered into an agreement and a written compromise Ex.C-1 was produced on record. On 07.05.1990, the following order was passed by this Court: - “The appellants namely Harbans Singh, Gurpal Singh and Dayal Singh and German Singh, respondent No.1 have entered into a compromise. The written compromise Ex.C-1 has been produced on record. An RSA No.2586 of 1985 (O&M) [ 7 ] ****** application was filed for disposal of the appeal in accordance with the said compromise. The statements of all the four of them have been recorded. They have admitted execution of the compromise deed Ex.C-1. This appeal would, therefore, be disposed of in accordance with the compromise entered into between the aforesaid parties at the time of final disposal. CM No.1128-C of 1990 thus, stands disposed of. The appeal will be taken up in routine.” Learned counsel for the appellants has submitted that the parties to the suit are closely related in which the plaintiff is claiming the right to the property of Surain Singh on the basis of unregistered Will dated 12.03.1978 (Ex.P1), whereas the defendants are relying upon a registered Will dated 09.09.1969 (Ex.D1) and defendant Nos.4 to 6 are relying upon the judgment suffered by Surain Singh on 25.08.1972 (Ex.D3) in respect of 270 kanals 18 marlas. He further submitted that in order to succeed in appeal, he has proved his Will (Ex.D1) and the judgment (Ex.D3) and has assailed the validity of the Will (Ex.P1) set up by the plaintiffs. The learned counsel opened his arguments by referring to the Will (Ex.D1) in respect of which, it is submitted that it was attested by Mehar Singh and Jagdish Chander, the scriber who could not be examined as they had already died. But Sohan Singh, another attesting witness, who appeared as DW-8 was examined who admitted his signatures but then resiled. However, it is submitted that even if the said witness had resiled, the Will cannot be left at his mercy as it is proved by other evidence led by the defendants by examining Balbir Singh son of the scribe and Pavittar Singh (DW-5), who proved the endorsement of the Sub Registrar. It was also alleged that mutation Ex.D-4 on the basis of the said Will was sanctioned on RSA No.2586 of 1985 (O&M) [ 8 ] ****** 19.06.1980, which was also admitted by German Singh (plaintiff No.1) who had filed the compromise Ex.C1 on record. It is submitted that the learned Courts below have erred in rejecting the registered Will Ex.D1 on the ground that it has not been proved in accordance with law. It is submitted that even if DW8 Sohan Singh has not supported and has resiled after admitting his signatures, the Court is not at his mercy. In this regard, he has relied upon a decision of the Lahore High Court in the case of Jalal Din and another V. Nawab and others, AIR 1941 Lahore 55 and a decision of this Court in the case of Babu Singh and others V. Ram Sahai @ Ram Singh, 2006(1) P.L.R. 592 to contend that if the attesting witness adopts a stance which is contrary to the duty imposed by law, then the Court has ample powers to proceed with its decision in terms of Section 69 of the Evidence Act, 1872. He further submitted that once the matter has been compounded by one of the plaintiffs, namely, German Singh, even admitting the decree of 25.08.1972, then the said decree should have been followed by the Courts below. In this regard, he has relied upon a decision of the Calcutta High Court rendered in the case of Baidyanath Nandi and others V. Shyama Sundar Nandi and others, A.I.R. (30) 1943 Calcutta 427 and two judgments of the Supreme Court in the case of Smt. Rani Bai V. Yadunandan Ram and another, AIR 1969 Supreme Court 1118 and Amteshwar Anand V. Virender Mohan Singh and others, 2006(1) P.L.R. 214. In reply, learned counsel for the respondents has submitted that a concurrent finding has been recorded by the Courts below and no substantial question of law, as envisaged under Section 100 of the Code of Civil RSA No.2586 of 1985 (O&M) [ 9 ] ****** Procedure, 1908 [for short "CPC"], is involved in this appeal. It is also submitted that the defendants have miserably failed to prove their Will and insofar as the decree is concerned, that does not confer any title as it only relates to possession. He also submitted that the defendants have only produced the order, but no decree has been produced. In respect of the withdrawal of the suit by German Singh, he has relied upon a decision of this Court in the case of Mr. Kuldip Singh and others V. Smt. Kaushalya Devi and others, 2009(5) RCR (Civil) 640. I have heard both learned counsel for the parties and perused the record with their able assistance. Learned counsel for the appellants has submitted that the substantial questions of law involved in this appeal is about interpretation of Will (Ex.D1), judgment (Ex.D3) and also whether the Will (Ex.P1) is surrounded by the suspicious circumstances. From perusal of the record, I have found that this is a dispute between the sons of Ajaib Singh and sons of Smt. Naino, who are claiming the property in dispute of Surain Singh. The plaintiffs have relied upon a Will dated 12.03.1978 (Ex.P1), whereas defendants Nos.4 to 6 have relied upon a Will dated 09.09.1969 (Ex.D1) and also a decree dated 25.08.1972 (Ex.D3). The Will Ex.D1 is registered, whereas Will Ex.P1 is unregistered, but the question is as to whether the plaintiffs and the defendants have proved their respective Wills in accordance with law or not? Both the Courts below have recorded a firm finding of fact in respect of due execution of Will Ex.P1 which has been proved not only by examining of both the attesting witnesses and also the scribe, whereas the Will Ex.D1 could not have been proved in accordance with law as attesting RSA No.2586 of 1985 (O&M) [ 10 ] ****** witnesses and the scribe had already expired and DW8 Sohan Singh did not support its execution as he has stated that he had never attested any Will of Surain Singh and had just signed the document at the instance of Mehar Singh. The argument raised by learned counsel for the appellants that the Will cannot be left at the mercy of one of the attesting witnesses, who has resiled, and if the witnesses are not available, then scribe can be followed, is of no consequence in the present case because the subsequent Will, namely, the last Will of Surain Singh (Ex.P1) has been duly proved in which there is a reference of the earlier Will (Ex.D1) also. It is well settled that the last Will of the testator is to be followed and until and unless the last Will, which is in favour of the plaintiffs, is proved to be not duly executed, the earlier Will Ex.D1, even if it is presumed for the shake of arguments to be duly executed, would not operate. However, in the present case, there is a concurrent finding of fact recorded by both the Courts below that the earlier Will was not duly executed because there was no evidence to support it, even if Section 69 of the Act is invoked. Insofar as the judgment Ex.D3 is conerned, that is only with regard to possession and no right of ownership was transferred by the said judgment. The learned Courts below have observed that there is no evidence on record to prove that actually Surain Singh had appeared at the time of suffering the decree based upon his admission because Harbans Singh (defendant No.4), who appeared as DW3, has stated that he was not aware as to who appeared on behalf of Surain Singh in the Court. They had also not produced any evidence to prove that any summon was issued to Surain Singh or he had accepted the service. In the absence of material placed on record, the learned First Appellate Court has rightly held that mere certified copy of the judgment would not prove that it has been RSA No.2586 of 1985 (O&M) [ 11 ] ****** suffered by Surain Singh especially when there is no evidence led about the partition having been effected by Surain Singh with his grandsons on the basis of which the said decree was alleged to have been suffered. The learned First Appellate Court has also observed that the appellants have obtained the decree and kept it close to their chest. It is not shown if any mutation was attested. There was no reference to any such transfer till the Will Ex.P1 was set up by the plaintiffs and the fact of partition was denied by defendant Nos.1 and 2, who are the sons of Surain Singh as Gurmej Singh, while appearing as DW9, had alleged that there was no partition of the property in dispute in the family and any partition by Surain Singh with his grandsons skipping over his sons would be highly improbable and illogical. In view of the aforesaid, I do not agree with the contention of learned counsel for the appellants that the Will Ex.P1 is not valid. Regarding suspicious circumstances, nothing has been argued before the Courts below, rather the finding recorded by the Courts below is that there was a halfhearted attempt by the defendants to point out any snag in the execution of the Will Ex.P1. Reverting back to the question of compromise, which took place before this Court in between defendants No.4 to 6 and German Singh/plaintiff No.1, the judgment relied upon by learned counsel for the defendants in the case of Baidyanath Nandi and others (supra) has been taken care of by this Court in the case of Mr. Kuldip Singh and others (supra) in which it has been held that withdrawal of suit by one of the plaintiffs cannot be done without the consent of the co-plaintiffs. In this regard, the Court has referred to Order 23 Rule 1(5) of CPC in which it is RSA No.2586 of 1985 (O&M) [ 12 ] ****** provded that "nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff". The judgments relied upon by learned counsel for the appellants/defendants in the cases of Smt. Rani Bai (supra) and Amteshwar Anand (supra) do not deal with the Order 23 Rule 1(5) of CPC, rather it deals with Order 23 Rule 3 of CPC. Hence, in view of the aforesaid discusion, I do not find any reason to disturb the judgment and decree of the Courts below by which the suit of the plaintiffs has been concurrently decreed nor do I find any substantial question of law involved in the present appeal in terms of Section 100 of CPC. Hence, the present appeal is hereby dismissed, though without any order as to costs. April 20, 2011. ( Rakesh Kumar Jain ) vinod* Judge