RSA No.325 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.325 of 2003 Date of decision 11.8.2011. Gurtej Singh and others ...... Appellants. versus Harcharan Singh and others ...... Respondents. Present : Mr. R.S.Aulakh, Advocate for the appellants. Mr. Rajesh Girdhar, Advocate for the respondents. COCP No.885 of 2003 Gurtej Singh and others ...... Petitioners versus Harcharan Singh and others ...... Respondents. Present : Mr. R.S.Aulakh, Advocate for the petitioners. Mr. Rajesh Girdhar, Advocate for the respondents. COCP No.624 of 2006 Gurtej Singh and others ...... Petitioners versus Harcharan Singh and others RSA No.325 of 2003 2 ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. R.S.Aulakh, Advocate for the petitioners. Mr. Rajesh Girdhar, Advocate for the respondents. K.C.PURI . J. By this common order, I intend to dispose of Regular Second Appeal No.325 of 2003 filed by Gurtej Singh and others, and C.O.C.P. No.885 of 2003 filed by Gurtej Singh against Harcharan Singh and others and C.O.C.P. No.624 of 2006 filed by Gurtej Singh against Harcharan Singh and others for violating the orders dated 28.1.2003 and 21.4.2003 passed by this Court. Since the regular second appeal and these two contempt petitions arose out of the same case, therefore, these have been taken up together for decision. 2. The present appeal has been directed by the appellants- plaintiffs against the judgment and decree dated 7.12.2002 passed by District Judge, Faridkot vide which the appeal preferred by the plaintiffs against the judgment and decreed dated 3.5.2000 passed by the learned Additional Civil Judge ( Senior Division), Faridkot, was dismissed in toto. 3. Brief facts of the present case are that originally father of plaintiffs Puran Singh and their uncle Karnail Singh were owners in possession of the total land measuring 93 kanals 18 marlas in equal shares. Their father died in the year 1992, whereas their uncle Karnail Singh expired on 5.4.1994. It has been further averred that Karnail Singh was a bachelor and he died issueless and the plaintiffs are the only legal heirs of RSA No.325 of 2003 3 Karnail Singh. During the life time of Karnail Singh, he used to reside with the plaintiffs and they used to serve and maintain him. They also used to cultivate the land of the share of Karnail Singh during his life time and after his death, they are in cultivating possession of the land of the share of Karnail Singh. The last rites of Karnail Singh deceased were also performed by the plaintiffs. They have inherited the entire estate of Karnail Singh being his only legal heirs as per provisions of Hindu succession Act. It has been further submitted that defendants are not the legal heirs of deceased Karnail Singh. About 15 days prior to the filing of the suit when the plaintiffs approached the Halqa Patwari in connection with the inheritance of Karnail Singh, then he disclosed that defendants have got entered the mutation of inheritance of deceased Karnail Singh in their favour by representing them to be the sons and widow of deceased Karnail Singh. Defendants have got no right over the suit property as they are not the legal heirs of the deceased Karnail Singh. On being threatened by defendants to dispossess the plaintiffs from the suit property and to alienate the same, the plaintiffs had to institute the present suit. 4. Upon notice, defendants put in appearance and filed their joint written statement controverting all the allegations. They took a preliminary objection in written statement that plaintiffs are estopped by their act and conduct from filing the instant suit as defendant No.1 Harcharan Singh had executed an agreement to mortgage 12 kanals of land out of the suit land in favour of Gurtej Singh and Surbhai Singh plaintiffs for Rs.45,000/- on 25.5.1994. 5. On merits, they admitted the relationship of plaintiffs with RSA No.325 of 2003 4 Karnail Singh deceased. However, it has been pleaded that defendants No. 1 to 3 are the sons and defendant No.4 is the widow of Karnail Singh deceased. Karnail Singh had also three daughters namely, Sukhdev Kaur, Harcharan Kaur @ Charanjit Kaur and Pal Kaur. While denying the plaintiffs to be the heirs of Karnail Singh, it has been submitted that Karnail Singh neither lived with the plaintiffs nor the plaintiffs rendered any service to him. Deceased Karnail Singh had executed a registered Will dated 29.11.1988 in favour of his sons Harcharan Singh, Harbans Singh and Harphool Singh and his wife Harnam Kaur thereby bequeathing his entire estate in their favour. However, Harnam Kaur was given a limited right in the estate of Karnail Singh. It has been further pleaded that Karnail Singh used to reside with the defendants at village Bir Sikhanwala and has his ration cards with them. Karnail Singh was employed as a Supervisor in the Forest of Bir Sikhanwala of Maharaja Faridkot. It has been further pleaded that Karnail Singh deceased used to give his land on rent to the plaintiffs and after his death defendants also gave their land on rent to the plaintiffs. Since plaintiffs are not the legal heirs of Karnail Singh, therefore, they could not succeed to his estate. The mutation of inheritance has been entered in favour of defendants on the basis of registered Will dated 29.11.1988. The defendants being the legal heirs of deceased Karnail Singh have every right over the suit property. The plaintiffs are neither owners nor in possession of the suit land, while denying all other allegations they prayed for dismissal of the suit. 6. Replication has been filed, in which plaintiffs controverted all the allegations made in the written statement and reiterated the pleas taken RSA No.325 of 2003 5 in the plaint. It was further submitted that the Will, if any, is a forged and fabricated document obtained by defendants by playing a fraud. Deceased Karnail Singh was having illicit relations with Harnam Kaur, who was the wife of Jita Singh and other defendants as well as alleged daughters of Karnail Singh are children of said Jita Singh and not of Karnail singh deceased. From the pleadings of the parties, following issues were framed:- 1. Whether the deceased Karnail Singh lived with the plaintiffs and is issueless? OPP 2. Whether the plaintiffs are the legal heirs of deceased Karnail Singh? OPP 3. Whether the plaintiff are in peaceful possession of the suit land? OPD 4. Whether the plaintiffs are entitled to the succession of the estate of the deceased? OPD 5. Whether the plaintiffs are estopped by their own act and conduct because they entered in to agreement to mortgage dated 25.5.1994 with defendant Harcharan Singh ? OPD 6. Whether the defendants No. 1 to 3 are sons and defendants No. 4 is the issue of the deceased Karnail Singh? OPD 7. Whether the deceased executed a registered Will in favour of the defendants? OPD 8. Whether the defendants lived with the deceased at village Bir Sikhanwala? OPD 9. Whether deceased Karnail Singh was a employee of the Maharaja Faridkot? OPD 10. Whether deceased Karnail Singh and the defendants gave the suit land to the plaintiffs or to any body ? OPD 11. Whether the plaintiff is entitled to declaration and RSA No.325 of 2003 6 consequential relief of injunction, as prayed for? OPP 12. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties and appraisal of the evidence partly decreed the suit vide judgment and decree dated 3.5.2000. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 3.5.2000, the plaintiffs-appellants preferred the appeal before the First Appellate Court, and the learned District Judge, Faridkot vide judgment and decree dated 7.12.2002 dismissed the suit of the plaintiff in toto. 9. Still feeling dissatisfied with the aforesaid judgments and decrees dated 3.5.2000 and 7.12.2002, the instant regular appeal has been preferred. 10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 11. At the time of admission, following substantial question of law have arisen for consideration :- (i) Whether the non-appearance of Harnam Kaur-defendant in the witness box would lead to an inference in favour of the plaintiff-appellants that Harcharan Singh was not son of Karnail Singh ? (ii) Whether birth of a child out of illicit relationship between Harnam Kaur -defendant and Karnail Singh would result into a presumption that the children were that of Harnam Kaur and Karnail Singh during the subsistence of marriage between Harnam Kaur and Jeeta Singh especially in view of Section 112 of the Indian Evidence Act, which attaches legitimacy children to the children born out of such wedlock ? RSA No.325 of 2003 7 12. During the pendency of instant appeal, applicant Gurtej Singh preferred the COCP No.885 of 2003 U/S 10 read with Section 12 and 14 of the Contempt of Courts Act, 1971 ( in short – the Act) for violating the judgment and decree dated 3.5.2000 and the orders passed by this Court dated January 28, 2003 and April 21, 2003 by the defendants-respondents. 13. It has been alleged that after the decision of the appeal by the learned District Judge, Faridkot vide judgment and decree dated 7.12.2002, the respondents vide sale deed Annexures P-2 and P-3 had sold the land measuring 30 kanals 6 marlas to respondent No.5 and the land measuring 8 kanals 10 marlas to the respondent No.4 vide registered sale deed dated 26.12.2002 and have started interfering in the peaceful possession of the applicant and his co-plaintiffs/appellants and have been violating with impunity the judgment and decree passed by the learned Civil Judge (Junior Division) dated 3.5.2000 and the order passed by this Court on 28.1.2003 and 11.4.2003. Therefore, the respondents are liable to be convicted for committing the Contempt of Court. 14. During the pendency of the instant appeal, the applicant Gurtej Singh preferred another COCP No.885 of 2003 U/S 10 read with Sections 12 and 14 of the Act for violating the judgment and decree dated 3.5.2000 and the orders passed by this Court dated January 28, 2003 and April 21, 2003 by the defendants-respondents. 13. It has been alleged that after the decision of the appeal by the learned District Judge, Faridkot vide judgment and decree dated 7.12.2002, the respondents vide sale deed Annexures P-2 and P-3 had sold the land measuring 30 kanals 6 marlas to respondent No.5 and the land measuring 8 RSA No.325 of 2003 8 kanals 10 marlas to the respondent No.4 vide registered sale deed dated 26.12.2002 and have been started interfering in the peaceful possession of the applicant and his co-plaintiffs/appellants and have been violating with impunity the judgment and decree passed by the learned Civil Judge (Junior Division) dated 3.5.2000 and the order passed by this Court on 28.1.2003 and 11.4.2003. Therefore, the respondents are liable to be convicted for committing the Contempt of Court. 14. Respondent No.6-DSP Randhir Singh Kotkapura has filed reply and alleged that he is not a party in C.S.No.444 dated 9.9.1994 as well as in civil suit decree dated 3.5.2000. It has been further pleaded that he has not been informed with respect to the status quo order regarding possession between the parties and he has never interfered with the peaceful possession over the land in dispute in any manner whatsoever. The petitioner has deliberately and falsely roped in the answering deponent with ulterior motives to pressurize the impartial police official who have no concern with the civil land dispute between the petitioners and the respondent Nos. 1 to 5. The police is duty bound to register the case on receipt of complaint from the complainant under the provisions of Section 154 Cr.P.C. The police neither harassing nor humiliating the petitioner in any way. Respondent No.8 registered case FIR No.63 dated 20.4.2006 under Sections 379 and 427 IPC. Police Station Sadar Kotkapura (Annexure R-1) on the statement of Gurcharan Singh and carried out investigation. The allegations levelled relates to the illegal harvesting of wheat crop. Respondent No.8 arrested the accused and recovered 69 bags of wheat weighing 50-50 Kg each and a tractor No. PB-6402 Marka RSA No.325 of 2003 9 International used to carry wheat. The Halqa Officer also visited the place of occurrence and carried out in depth and thorough investigation. During the visit of the answering respondent it has been found that accused Gora Singh and Bakhtaur Singh were innocent in this case. Respondent No.7 was directed to get these accused discharged in this case and put the challan in the Court. As per my directions respondent No.7 put the challan against Gurtek Singh, Gurbhai Singh, Gurtej Singh, Balbir Singh and Kuldip Singh in the court on 7.6.2006. The police is duty bound to protect the life and property of its citizens and act according to laid down. The allegations levelled by the petitioner in this para of the petition are totally baseless and false. No family members of the petitioner were illegally detained in the police station, hence question of harassing and torturing them by the police does not arise. 15. It has been further alleged that respondent No.9 registered case FIR No.71 dated 30.4.2006 under Sections 341, 323 and 34 of the Indian Penal Code Police Station Sadar Kotkapura (Annexure R-2) on the statement of Smt. Mukhtiar Kaur and conducted investigation. During investigation allegations levelled by the complainant were not proved and cancellation report has been prepared on 3.6.2006. The petitioner filed the complaints against the police officials just to harass and put pressure on them. Denying other averments, he prayed for dismissal of the application. Almost similar is the plea of respondent Nos.7 to 10. 16. Respondent Nos.1 to 5 and 11 appeared and also filed reply alleging that they are in possession of the land in dispute and vide order dated 28.1.2003, this Court directed the parties to maintain status quo RSA No.325 of 2003 10 regarding possession. Thereafter, petitioner-Gurtej Singh started interfering into possession of the answering respondents and as such the answering respondents submitted various applications to the Revenue officials as well as to the police officials. On the basis of the applications submitted by the answering respondents a number of FIRs have been registered against the petitioner and others regarding their interference into the possession of the answering respondents and regarding the forcible harvesting of crops sown by the answering respondents. Some of the FIRs have been annexed by the petitioners along with the contempt petition and apart from it another FIR No.78 dated 9.5.2006 under Sections 341, 323 read with Section 34 of the Indian Penal Code has been registered qua the same land in dispute. On 28.6.2006, the Sub Divisional Magistrate, Jaitu has also written a letter to the Station House Officer, Police Station Sadar Kotkapura regarding the complaint submitted by the answering respondent No.1 against the present petitioner for his interference into the land in dispute. Meaning thereby, the contempt petitioner and their companions are interfering into the possession of the answering respondents and the contents of the contempt petition are totally false and baseless and as such the contempt petition qua the answering respondents is liable to be dismissed. 17. It has been further alleged that earlier the contempt petitioner and others have also filed C.M.No.124-CII of 2004 in RSA No.325 of 2003 seeking police help for enforcement of status quo orders passed by this Court. The said application has been ordered to be heard along with main case vide order dated 9.1.2004. Denying other averments, the respondents prayed for dismissal of the application. RSA No.325 of 2003 11 18. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 19. The learned counsel for the appellants has submitted that the case of defendants from the very beginning is that Harnam Kaur is the wife of Karnail Singh whereas Harcharan Singh, Harbans Singh and Harphool Singh are his sons. In fact Harnam Kaur was married to Jita Singh son of Chanda resident of village Killanor. Harnam Kaur has not come into the witness box to depose her relationship with Karnail Singh. It is submitted that since Harnam Kaur has not deposed about the relationship. So, adverse inference should have been drawn by both the Courts below. 20. The other claim made by the defendants is in respect of registered will in favour of the defendants. The said Will is surrounded by suspicious circumstances. Both the witnesses belong to village of defendants-respondents, so they are naturally interested in them. The possession of the suit land has been admitted by the defendants. The appellants are in possession of the suit property in hostile manner adversely to the rights of the defendants and as such on that account also they have become owners of the suit property. Both the Courts below have misread and misinterpreted the evidence regarding relationship of the defendants with Karnail Singh. 21. It is further submitted that so far as the relationship of plaintiff with Karnail Singh is concerned that has not been challenged by the defendants. So, the plaintiffs being nephews of Karnail Singh are owner in possession of the suit property. 22. There is concurrent finding of fact recorded by both the Courts RSA No.325 of 2003 12 below that Harnam Kaur is the widow of Karnail Singh deceased and defendant Nos.1,2 and 3 are the sons of Karnail Singh. The finding of fact recorded by both the Courts below regarding relationship cannot be interfered in the regular second appeal unless the judgments and decrees of both the Courts below are perverse or the result of misreading and misinterpreting the evidence. Both the Courts below have threadbare appraised and reappraised the evidence regarding relationship of the defendants with Karnail Singh and came to the conclusion that Harnam Kaur is the widow of Karnail Singh whereas Harcharan Singh, Harbans Singh and Harphool Singh are his sons. The stand taken by the plaintiffs that Karnail Singh died instate has been rightly repelled by both the Courts below. Both the Courts below have rightly held that plaintiffs have failed to prove that Harnam Kaur is the widow of Jita Singh and other defendants are the sons of Jita Singh. Mere fact that Harnam Kaur has not come to the witness box is not sufficient to discard the other material evidence which has been produced in accordance with Section 50 of the Indian Evidence Act. The near relation of Harnam Kaur has come into the witness box. So, in these circumstances, the finding of fact regarding relationship of the defendants with Karnail Singh cannot be interfered in the regular second appeal. 23. So far as the challenge of appellant in respect of registered Will of Karnail Singh in favour of defendant Nos.1 to 3 is concerned, both the Courts below have appreciated the evidence on the record minutely and reached to the conclusion that Will stands duly proved. That also being a finding of fact cannot be interfered in the regular second appeal in the RSA No.325 of 2003 13 absence of any material which could disprove the Will. 24. So far as the factum of possession is concerned, the defendants have taken a stand that plaintiff was in possession of the suit property as tenant but that fact has been denied by the counsel for the plaintiffs. The first Appellate Court has rightly held that as the tenancy has been denied by the appellant and as such, the plaintiffs became the trespassers of the suit property and on that account they are not entitled to the decree of permanent injunction. 25. So, both the substantial questions of law raised by the learned counsel for the appellants stand answered against the appellants to the extent referred to above. 26. In view of the above discussion, the regular second appeal preferred by the appellants is without any merit and the same stands dismissed with costs. 27. So far as COCP No.885 of 2003 and COCP No.624 of 2006 are concerned, the main allegation in that petitions are that defendants have sold the land measuring 30 kanals 12 marlas to Kewal Singh contemners whereas the same persons have sold 8 kanals 10 marlas as half share of land of 17 kanals 4 marlas to contemner No.4. Both the Courts below have held that the plaintiffs are in possession of the suit property. The injunction passed by this Court on 28.1.2003 was in respect of status quo regarding possession till further orders. There was no injunction order regarding alienation of the property. Otherwise also since the appellants remained unsuccessful in the main appeal and as such the contempt petitions mentioned above are without any merit and the same stand dismissed. RSA No.325 of 2003 14 28. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 11, 2011 sv