C.R. No.1334 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 1334 of 2008 (O&M) Date of Decision: November 17, 2009 Kirpal Singh ...........Petitioner Versus Smt.Tarowati and others ..........Respondents Coram: Hon'ble Mrs.Justice Sabina Present: Mr.Hemant Bassi,Advocate for the petitioner. Mr.B.R.Mahajan, Advocate for respondents No. 1 o 8 and 11 None for respondents No. 9 and 10 -- Sabina, J. This revision petition is filed under Article 227 of the Constitution of India for setting aside order dated 8.2.2008 (Annexure P6) passed by learned Additional District Judge (Adhoc), Fast Track Court, Ambala. Plaintiffs-Kirpal Singh and Mohinder Singh filed a suit for declaration that the plaintiffs along with defendants No. 2 to 8 be declared as joint owner in equal shares of the property in dispute and the sale deeds C.R. No.1334 of 2008 (O&M) 2 executed by defendant No.1, in favour of defendants No. 9 to 11, be declared as illegal, null and void. The suit filed by the plaintiffs was decreed vide judgment and decree dated 26.5.2004 passed by the Civil Judge (Junior Division) Ambala. Defendants No. 9 and 10 filed an appeal against the said judgment and decree. In appeal, the appellants-Mam Chand (through LRs) and Om Parkash moved an application under Order 41 Rule 27 of the Code of Civil Procedure for permission to lead additional evidence. Vide the impugned order dated 8.2.2008, the applications for permission to lead additional evidence were allowed. Hence, the present revision petition by plaintiff-Kirpal Singh, Learned counsel for the petitioner has submitted that the applications for permission to lead additional evidence had been filed to fill up the lacuna in the case of the appellants-Mam Chand (through LRs) and Om Parkash. The said appellants had failed to prove the Will executed by Gurdial Singh in favour of defendant No.1- Paramjit Singh. Learned counsel for the respondents No. 1 to 8 and 11 has submitted that the additional evidence, now sought to be led by the appellants, was very necessary for the just decision of the case The vendees were bona fide purchasers for consideration. The vendees had purchased the land from defendant No.1 on the basis of Will as he was owner of the land sold to them by virtue of the Will. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be dismissed. The facts of the case, as noticed by the learned trial Court in the impugned order in paras 2 to 5, reads as under:- “2. The facts of the plaintiffs case are put in a narrow compass as C.R. No.1334 of 2008 (O&M) 3 under:- It was pleaded by the plaintiffs that plaintiffs and defendant no.2 to 8 are related to each other as the brothers and sisters respectively. Sh.Gurdial Singh was their father whereas the defendant No.7 is husband of Shakuntla Devi, deceased sister of the plaintiffs and defendant no.8 is the daughter of deceased-Smt.Shakuntla Devi sister of plaintiffs. It was further stated that Sh.Gurdial Singh son of Sh.Mela Ram, father of the plaintiffs was the owner and in possession of the land in dispute and he died on 19.9.1994 and now the plaintiffs and defendants no. 2 to 8 are entitled to inherit his property under the Hindu Succession Act, but the defendant No.1, who is the son of the plaintiff No.2 and grand son of Gurdial Singh deceased with ulterior motives in order to grab the entire property in dispute, lodged a false and frivolous FIR against the plaintiffs that the plaintiffs have murdered their father Gurdial Singh. However, the Ld. Sessions Judge acquitted the plaintiffs from that criminal case. 3.It has further pleaded by the plaintiffs that defendant no.1 wanted to grab the entire property left by deceased Gurdial Singh and he got the land in dispute except house mutated in his name on the basis of forged and fabricated Will and the mutation was sanction in favour of defendant no.1 without notice to the plaintiffs. On the basis of the alleged mutation, the defendant No.1 sold the land except house to defendants no. 9 to 11 by virtue of 3 sale deeds, dt. 29.9.1995 and 4.10.1995 inspite of the facts that the defendant no.1 was having no right to alienate the suit property. Thus, the Will in question is forged and fabricated document, which is liable to be set aside. C.R. No.1334 of 2008 (O&M) 4 4. In pursuance to the notice issued by the Court, defendant-Paramjit Singh appeared and filed its written statement to the effect that a Civil Suit titled as Smt.Sarla Devi vs. Paramjit Singh, is already pending; that Smt.Sarla Devi, Smt. Bali Rani, Smt.Satya Wati (present defendants No. 4 to 6) along with Om Parkash and Neeta Rani (defendants No. 7 & 8) have filed a suit against Paramjit Singh- defendant No.1,Mohinder Singh and Kirpal Singh and they have set up their claim and they have stated that plaintiffs are disqualified under Section 25 of the Hindu Succession Act, to inherit the property of deceased Gurdial Singh; that suit is liable to be stayed under Section 10 CPC 5. On merits, it was averred by the defendant No.1 that no particulars of properties owned by Gurdial Singh s/o Mela Ram have been given. Thus, the plaint is vague and at any rate, the property such as Tractor No.HR01-B-8735 owned by Gurdial Singh, nor the loan of Gurdial Singh due to Oriental Bank of Commerce for the liability in respect of the said loan has been at all has been mentioned by the plaintiffs for the reasons best known to them. It is further averred by defendant No.1 that the answering defendant is the sole and exclusive heir of Sh. Gurdial Singh in view of the Registered Will No.14 dt.28.5.1992 being the last valid Will executed by Sh.Gurdial Singh in favour of the answering defendant. The said will has been duly given effect to vide mutation No.357 of Vill. Alipur and the plaintiffs have no right in the suit property. The sale deeds executed by defendant No.1 in favour of defendants NO. 9 to 11 are perfectly valid and legal.” C.R. No.1334 of 2008 (O&M) 5 Thus, the Will dated 28.5.1992 executed by Gurdial Singh in favour of his son Paramjit Singh is a document in dispute between the parties. The scribe as well as the attesting witness of the Will in question had expired before the defendants were to lead their evidence before the trial Court. Now by way of additional evidence, the appellants want to examine the son of the attesting witness to prove the execution of the Will. The Will in question is a registered document. Gurdial Singh died on 19.9.1994 and mutation on the basis of the Will was sanctioned on 16.2.1995 in favour of defendant No. 1-Paramjit Singh. The appellants had nothing to gain by not leading the evidence in proof of the Will. However, the Will was required to be proved by defendant No.1- Paramjit Singh, vendor. The appellants cannot be penalized for the default committed by defendant No.1 in not leading the relevant evidence in support of the Will. Moreover, if the appellants are allowed to lead additional evidence, lis between the parties can be disposed of on merits and more effectively. The endeavor of the Court is to impart justice between the parties and the Courts are not bound by technicalities or rules of procedure while dispensing justice. The paramount duty of the Court is to do justice. In these circumstances, the impugned order cannot be said to be illegal or without jurisdiction. Learned Additional District Judge has allowed the appellants- defendants No. 9 and 10 to prove the execution of the Will by calling the son of the attesting witness and also to prove the facts that the attesting witness as well as the Scribe had died. The impugned order does not suffer from any material illegality or irregularity which may warrant interference by this Court in C.R. No.1334 of 2008 (O&M) 6 exercise of revisional jurisdiction under Article 227 of the Constitution of India. Dismissed. ( Sabina ) Judge November 17, 2009 arya C.R. No.1334 of 2008 (O&M) 7 A brief description of the case will be helpful for proper discussion of the above applications. History of the case is that one Gurdial Singh was the owner of suit land measuring 74 Kanal 11 Marlas situated at village Alipur, Tehsil Barara, District Amabla. He was having two sons Kirpal Singh and Mohinder Singh (plaintiffs) and six daughters (defendants No. 2 to 6 and one Shakuntala Devi) since died and being represented by her husband Om Parkash and her daughter Neeta Rani, both arrayed as defendants No. 7 & 8). Plaintiff No.2 Mohinder Singh had married twice. Paramjit Singh (defendant No.1) is his son from the first wife. Mohinder Singh and Paramjit Singh were having constrained relations. Gurdial Singh died on 19.9.1994. Plaintiffs then filed present suit on 23.12.1995 for a declaration that both of them as well as defendants No. 2 to 8 are the joint owners as per their share in the entire land left by their father. It also stands mentioned in their pleadings that Paramjit Singh (defendant No.1) got lodged a false and frivolous case against the plaintiffs alleging that plaintiffs have murdered their father Gurdial Singh. As a result of said case, plaintiffs were arrested and had to face trial in the court of Ld. Sessions Judge, Ambala, in which they have since been acquitted. However, in the meantime defendant No.1 got the land in dispute mutated in his name on the basis of a forged and fabricated Will of Gurdial Singh and then sold it in favour of defendants No. 9 to 11 by virtue of three sale-deeds dated 29.9.1995 & 4.10.1995. Defendants No. 9 to 11 are, thus, fraudulent purchasers. They then removed standing trees of `Safeda & Shisham' in the absence of plaintiffs during the trial of above referred criminal case and have now C.R. No.1334 of 2008 (O&M) 8 threatened that they will construct a house on the same. Learned trial Court in its judgment dated 26.5.2004 observed that none of the attesting witnesses of Will have been examined and on that account execution of the Will is not duly proved. Consequently, learned trial Court decreed the suit and declared defendants No. 2 to 8 as joint owners in equal shares of the property in dispute, plaintiffs as owners and in exclusive possession of the house and bara shown by marks ABCD in the site plan, defendants No. 1 & 9 to 11 having got no right and interest in the property and that sale -deeds executed by defendant No.1 in favour of defendants No. 9 to 11 in respect of agriculture land and bara are illegal, null and void and not binding upon the rights of the plaintiffs & defndants No. 2 to 8. Plaintiffs were further held entitled to relief of joint possession of the land in dispute and defendants No. 9 to 11 were restrained from making any construction or alienation of the suit property. 3. In the first application for additional evidence, it has been stated that while producing evidence appellants could not deposed regarding the death of the witnesses of Will, namely, Ved Parkash Goswami son of Munshi Ram, (died on 22.12.1999) Ajmer Singh son of Budh Singh (died on 28.2.2001) and Ranjit Singh son of Saroop Singh (died on 21.1.2000) in-spite of due diligence and good faith on account of being rustic villagers. They had obtained attested copies of death certificates of the witnesses from the Civil Hospital well in time and handed over the same to their counsel. However, due to some unintentional mistake, counsel omitted to produce them in evidence and the documents remained lying in his brief unnoticed. C.R. No.1334 of 2008 (O&M) 9 4. In the second application for additional evidence, it has been averred that mere proof of death of attesting witnesses & scribe of the Will is not going to serve the case of the appellants and,therefore, a permission has been sought to prove registered Will dated 28.5.1992 by resorting to other provisions of law i.e. section 69,70,71,72 & 73 of the Indian Evidence Act. 5. In the subsequent application dated 20.9.2007, appellants had sought permission to amend and supplement the second application for additional evidence. It states that since both the attesting witnesses of Will (Exh.D3) had already died, therefore, the signatures of one of the attesting witness, namely, Ved Parkash, Lamberdar, is required to be proved by examining his son Kailash, who had already deposed as a witness in another suit between the parties, i.e. in the mutation proceedings before A.C.Ist Grade. Similarly signatures of the second attesting witness, namely, Ajmer Singh is required to be proved by examining his son Kulwant Singh, who had also deposed as a witness in said mutation proceedings between the parties.”