11 1 424 T ReSeAeNoe273 of2007 t2 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1 RSA No 273 of2007 DateofDecisionl December21 2009 GurdipSinghandothers Appellants m f Vs 0 0 Pritam Singhand others Respondents I C I CORAM HONBLE MR JUSTICE MM BEDI Z Present1 Mr AJCChopraSr Advocate with 0 Mr RajnishChauhan Advocate for the I MrArun Palli SeniorAdvocate with 08 Mr Kanwal GoyalAdvocate for therespondents 7 Z MeMS BEDI J 21 tl Defendantshavepreferredsecondappealagainst the P and decreefor declarationand possessionpertaining to 3 I kanals l marla of land mentioned ln Schedule A of the plaint passedin favoUl Of the plaintiff respondents vide judgment and decree dated February9 1998 passedby Civil JudgeJunior Division Batala and afOrmed by the lower Appellate Court videjudgment and decreedatedOctober 5 2006 The plaintiftlrespondents had claimed that the propertylIl e dispute to their father Nazar SinghSlo Chet Singh who was . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 1 425 RSA No 273 of2007 1 121 l 1 44 residingin Malaysia Defendant appellantNol was an old associateof said Nazar SinghbeingLambardar of the Village Defendant NO l had been Nazar Singhin Managementof his Estate in India during absence Nazar Singhdied in Malaysiaon January30 1981 Vide a valid Will datedOctober 20 1973 registeredon the same date deceasedNazar 1 Singhhad bequeathed his estate includingthe suit propertyin favour ofthe tr 0 plaintifferespondentsEven otherwise plaintil respondents beingonly C legalheirs of deceasedNazar Singhare entitled to inherit the propertyas I C5 naturalheirs DefendantNo had got sanctionedmutationof successionto the Estate of Nazar Singhln favour of his sons ie other defendan Z No to 5 on the basis of a Will whereasNazar Singhhad not C executedany Will in favour ofdefendane appellantsHavingcome to leam I about the fraud forgeryand fabrication of the Wi ll and the mutation 05 111 favour of the defendants the suit for declaration and possession was filed after the defendantsfailed to admit the claim of the 7 Z plaintiffs The defendant appellantscontestedthe suit interalia on the 0 0m groundthat thepropertyhad not beenproperly and conectlydescribedin the A headingof the plaintthat the plaintifE are not in any manner related to Nazar Singh It was denied that Nazar Singhhad any house lll Malaysia It was claimed by defendanteappellant Nol that Nazar Singh usedto treat him as his son It was deniedthatNazar Singheven executed any Will datedOctober 24 1973ratheranotherWill datedAugust6 1978 In favour of defendantNos 2 to 5 on accountof love and affection in lieu of . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 426 ReSeAeNoe 273 of2007 131 0 i to defendthe claim ofthe plaintifflrespondentsIt was claimed that mutationhas been sanctionedin favour of defendantNos 2 to 5 on the basisof valid and genuine Will dated August6 1978 A pleaof defendar havingbecome owner by way of adverse was also taken Followingissues have been C 8amed bythe trial Court 0 1 Whether theplaintiffsare owners in of C the suit land on the basis of will dated24101973 C5 executed by Nazar Singh lll favour of I plaintiffs20PP Z 1A Whetherthe defendantshave also become owner of the suit land by way of adverse for I the last more than 20 years2OPD 08 2 Whether the plaintiffsare entitled for the possessionof the suit land on the basis of Will 7 Z rI mentionedin issueNo12 OPP CL Ar 2A Whether the plaintiffbeingheirs of sons of said Nazar Singhare entitled to possessionof the SUlt land as alleged2 OPP 3 Whether the suit is not maintainablein the present f0rm7OPD 4 Whetherthe suit is within limitation2OPD . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 427 RSA No 273 of2007 141 0 l 4 5 Whether the suit is properly valued for the purpose of court fee andjurisdiction2 OPD 6 Whether Nazar Singhdeceased executed a valid 1 and Iegalwill in favour ofdefendants No to 5 if so its effect2OPD Q 7 Relief 0 On appreciation of evidenceSndingof fact has been anived at 0 by both the Courts below that the plaintif are owners lIl I C5 possessionof the suit land on the basis of Will dated October 24 1973 I executedbyNazar Singhin favourofplaintif respondents andthattheyare Z entitled to the possessionof the suit land on the basis of said Will Issues 0 Nos 1 2A and 6 were decided in favour of the plaintiftlrespondents and I againstthe defendants The lower Appellate Court has held that registered 06 Will ExP 1 dated October 24 1973 is provedto have been executedby 7 Nazar Singhand the same has been provedby Kewal Krishan Head Z Clerk ofthe OfOce ofDeputyCommissioner Gurdaspur while r appearing as PW1 PW2 SomaDevi wife ofBhan Singhstatedthatshe was presentat the time of execution of the Will Nanak Chand PW8 provedto d have scribe the Will ExPl dated October 24 1973 Ajit Singh in the capacityof attomeyof plaintiffl appeared as PW4 He proved that he was generalattomeyby virtueofdeed ExPW41A The said Will had beenattestedby none else but GurdipSinghdefenda appellant Nol and BhagwanDass Admittedlyattesting Wltness Bhagwan Dass had died The r . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 428 RSA No 273 of2007 6 151 l 0 other attesting witness appellant No1 GurdipSinghappeared as DW3 and admittedthat he is lambardarof the Villagefor the Iast 50 years Appellant Nol GurdipSinghproducedunregistered Will Ex Dl and deposed that Will ExDl was scribed in favourofhis sons in presenceofauesting witness Amrik SinghDW1 The Courts below disbelievedGurdipSinghtakinginto r considerationvarious suspiciouscircumstancesand inview of theregistered 0 Will havingbeen executedby Nazar Singhdecreedthe SUlt of the plaintiff C respondents for declaration and pertaining to 77 kanals 6 marlas I C5 of land which was owned by Nazar Singhas per Jamabandi ExP2 and mutation ExJ02 The detailsof the propertyhas been mentionedin para 19 Z ofthe trial Court datedFebruary9 1998 a C ShK ChopraSenior Advocate has contended I that both the Courts below have acted illegallyin ignoringsubstantial 08 questions of law which anse for determinationlll the case The following questionspurporting to be questions oflaw were raisedl mW Z 41 a9 Whether in absenceof examlnatiOll of any of the r witnessesofthe Will ExPl theWillCaIl be legallyheld to have been provedespecially ln Iight of the provisionsof Section 68 of the Evidence Act2 b9 Whethersummoning ofthe attesting witnesseswas essentiallyrequired the fact that thewitnessis a partyto the lis2 . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 429 RSAe Noe 273 of2007 161 0 c Whether the Will ExDl which is dulyprovedby examiningtwo witnesses could be legally discardedbytakinginto considerationthe fact that the same is dl Whether the facts pertainingto the personal 1 knowledgeof the plaintiffswere required to be 0 1 the plaintiffsthemselvesby appearing C ln the witness box and submitting themselvesfor I C provedby the examination of the power of Z attomey holder2 C el Whether the impugnedjudgmentsand decrees I which are the result ofnoneadinglmiseadingof 08 the pleadingsl evidence on recor Call be legally sustained a Z n ln context to the legalissues a b and c mentioned above IJ leamed counselarguedthat ifboth theattesting witnessesofthe Will are not found the Will has to be provedby invokingSection 69 of the Evidence Act He contendedthat Section68 ofthe Evidence Act laysdown the mode of proof When a Will 1Sto be provedby two attestingwitnessesand one witness has died and anothercannot be found in such a case Will may be proved 111 the manner indicated in Section 69 of the Evidence Act by examining witnesseswho are ableto prove the handNriting oftestator and 4 Il . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 430 0 RSAe No 273 of2007 171 1 A executan In supportof his contention he placedreliance on Babu Singh and others Vse Ram Sahai Ram Singh 2008 039RCR 6Civil 154 and Gurcharan Singhand others Vse AngrezKaur and another 2008 641 RCR 6Civil9l 78 He contendedthat one of the auesting witnessesof the Will dated October 24 1972 BhagwanDass had died and other witness n 0 GurdipSinghhad not beenexaminedas such the Will ExPl cannot be said 0 to have been provedin accordance with law The Courts below have C considered the fact that BhagwanDass has died whereasthe other attesting I C wltness GurdipSingheappellantNo l himself has putorth anotherWill I ExDl allegingthat Nazar Singhhad executed a Will in favour of his sons Z ie defendantsNo2 to 5 GurdipSinghwho was himself an attesting r witnessofExP1 claimed his rightsadverseto the rightsof the plaintiffand I wantedto establish another Will ExD l dated August6 1978 In said C45 circumstances he cannot be to abuse the process of law by m seeking protectionof Section68169of the Evidence Act He has admittedly a Z1 a lambardarof the village The of the Will Exl has been m 11 proved byPW1 No doubt registration ofthe Will is not necessary but ifits has been established the said circumstancecan be taken to be a factor regardingthe execution of the document The execution of the document ExP l is a questionof fact which does not warrant any interferencein secondappeal 4dlo ln referenceto the law pointsoughtto be raised at D and lt wascontendedby MrChoprathatthe suit had been filed throughAjit Singh . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 431 0 RSAe No 273 of 2007 181 eA powerof attomeyholder and in view of the law laid down in Janki Vashdeo BhojwaniVs Indusind Bank Ltd 2005 1I RCR 6Civill240 the statement and crossexamination of Power of attomeyon behalf of the plaintiffor defendantis not as he cannot be allowed to appear and deposeas a witness on behalf of the principalin the mattersof his 1 r personal knowledge 0 I have consideredthe ratio of therulingcited bycounsel for the C In the said judgmentthe SupremeCourt had remanded the I C0 matter to the Debt RecoveryTribunal for purposeof recording a 6ndingon I thepointwhetheror not on the date of decreethe appellantin that case was Z covner of the propertyin dispute and to ascertaln whether the appellant C had any independent source of income or whetherhe had contributedfor the I purchase of the propertyin disputefrom his income Butin 08 00 context to the directionsgivenby the Court the appellant himself did not W2 enterthe witness box to dischargethe burden but had put in appearanceon Z Il behalf of the holder of power of attomeywhereas he did not have any fll personalknowledgeof the matters of the appellantand it was held that he could not deposeon his personalknowledge nor he could be crossexamined on thosefactswhich are to be in thepersonal knowledgeof theprincipal It was observed in the said judgmentthat the power of attomeycould not depose for theprincipalin respectofthe matter which onlytheprincipalcan have a knowledgeand in respectof which the principleis entitled to becrossexamined The pleaofAjit Singhnot havingan authority to 6le . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 432 RaSeAeNoe 273 of 2007 IJ 0 1 a suit and deposewas raised beforethe lower AppellateCourt The lower Court has dealtthe matter in detailand in context to theprovisions of Order 3 Rule 1 CPC and Section 118of the Evidence Act and Power of Attorney Act 1882 and the facts andcircumstancesof the presentcaseheld thatthe allegation ofthe that evidence on record camot be taken 1 into consideration had no substance as the title in the presentcase had to be 0 establishedbyprovidingdocumentson the basisof which title is claimed by 0 naturalheirs The evidenceproducedbythe attomeyfor plaintiffs cannot be I C rejected as he had been thoroughlycrossexamined in respect to the I avermentsmade in his depositionThe Janki Vashdeo Bhojwanis case Z supra9 does not lay down law that power ofattorneyis absolutelybarredin all circumstancesto depose on behalf of the principalas such I do not flnd I anyforce in the contentions of leamed counsel for the appellants in context 08 0 to theproposed law pointsraisedin the case 7 In the above said peculiarcircumstances of this case no Z substantialquestion of law ariseswarranting interference So far as adverse il claimed by the appellants is concerned there is no evidence led to establishthat the defendantshave acquiredtitle by way of adverse possession The permissivepossession of the defendantscannot be termed asadverse No groundis madeout for interference Dismissed 0 December21 2009 6A4SBEDI9 sanlay JUDGE 1 Ip IlV he 1 t ap elT Rc7 161 o . Rashmi 2012.07.27 16: 19 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document