RSA No.4808 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4808 of 2009 Date of Decision : 13 th May, 2011 Sarabjit Singh & others ….Appellants Versus Gurmeet Kaur & others ….Respondents CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT : Mr. Parveen Kumar, Advocate for the appellants. * * * * * L. N. Mittal, J. (Oral) Defendants No.1 to 3 have preferred the instant second appeal. Respondents No.1 and 2/plaintiffs Gurmeet Kaur and Ranjit Kaur filed suit against defendants No.1 to 3/appellants and against respondents No.3 to 5 as defendants No. 4 to 6. It is undisputed that Resham Singh predecessor of both the parties was owner in possession of the suit land. He had two wives i.e. plaintiff No.1 and defendant No.5. Plaintiff No.2 is daughter and defendants No.1 to 3 are sons of Resham Singh from plaintiff No.1, whereas defendants No.4 and 6 are son and daughter of Resham Singh from defendant No.5. -1- RSA No.4808 of 2009 Plaintiffs claimed that being legal heirs of Resham Singh, they are owners of the suit land to the extent of 2/8th share having inherited from Resham Singh. Accordingly, plaintiffs also sought relief of joint possession of their 2/8th share in the suit land, besides declaration and permanent injunction. Defendants No.1 to 3 set up Will dated 15.08.1982 executed in their favour by Resham Singh and accordingly claimed to be exclusive owners of the suit land. They also made counter claim to this effect. Defendants No.4 to 6 also contested the suit and pleaded that plaintiffs have to seek partition of the suit land. Learned Civil Judge (Junior Division), Dasuya, vide judgment and decree dated 16.02.2005, while upholding the Will set up by defendants No.1 to 3 on the basis of a judgment in an earlier suit, however, dismissed the suit of the plaintiffs as well as the counter claim of defendants No.1 to 3. First appeal preferred by defendants No.1 to 3 as well as cross-objections preferred therein by the plaintiffs have been dismissed by learned Additional District Judge, Hoshiarpur vide common judgment and decree dated 15.06.2009 with the modification that plaintiffs have to seek partition of the suit land and cannot seek joint possession thereof because names of the plaintiffs are already recorded in Jamabandis as cosharers in the suit land. It was also held by the lower appellate court that both widows of Resham Singh have one share, whereas other legal heirs of Resham Singh have one share each in the suit land. Feeling aggrieved, defendants No.1 to 3 have filed the instant second appeal, whereas plaintiffs have also filed RSA No.2457 of 2010 which has to be taken up separately. -2- RSA No.4808 of 2009 I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that finding on issue No.1 regarding Will set up by defendants No.1 to 3/appellants has been recorded in favour of the appellants and, therefore, their counter-claim could not be dismissed. The contention cannot be accepted. Appellants herein had earlier filed suit on the basis of same Will, which was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure (in short, the CPC). Appellants herein filed another suit No.109 of 1987 thereafter, which was dismissed vide judgment and decree dated 07.12.1989 in view of bar of Order 9 Rule 9 CPC although finding in that suit regarding Will was returned in favour of the appellants herein. On the basis of said finding, the trial court decided issue No.1 relating to Will in favour of the appellants herein. Lower appellate court, however observed that the said finding on Will in previous suit No.109 of 1987 will not operate as res judicata because the said suit was dismissed and defendants of that suit had no right to file appeal. Inspite of this observation, the lower appellate court upheld the finding of the trial court on issue No.1 regarding Will by observing that the said finding had not been challenged by respondents i.e. by plaintiffs and defendants No.4 to 6. This approach of the lower appellate court is patently perverse and illegal. Once finding in previous suit No.109 of 1987 regarding the Will was held to be not operating as res judicata, then the finding of the trial court regarding the said Will based merely on the finding in the said previous suit, could not be upheld by the lower appellate court. Observation of the lower appellate court that the said finding had not been challenged by respondents is also -3- RSA No.4808 of 2009 contrary to record because plaintiffs, who were respondents No.1 and 2 in the lower appellate court, had specifically challenged the said finding of the trial court by filing cross objections. From the aforesaid, it is manifest that finding recorded by the courts below on issue no.1 regarding Will is patently perverse and illegal and therefore, unsustainable. The said finding is based on judgment dated 07.12.1989 in suit No.109 of 1987, but since the said suit filed by the appellants herein was dismissed, defendants of that suit had no right of preferring appeal against that judgment so as to challenge the said finding. Consequently the said finding cannot operate as res judicata in the instant suit regarding the Will. Except the said judgment, there is practically no evidence in the instant suit to prove the alleged Will. Only Hardeep Singh- defendant No.2 appeared as DW-1 in the instant suit but admittedly he is not attesting witness of the alleged Will. No attesting witness of the alleged Will has been examined. Consequently in view of Section 68 of the evidence Act read with Section 63 of the Indian Succession Act, the alleged Will is not proved because it was essential to examine at least one attesting witness of the Will to prove the same. For the reasons aforesaid, I find that finding of the lower courts on issue No.1 in favour of appellants herein is patently perverse and illegal and is, therefore, liable to be set aside being based on misreading and misappreciation of evidence. Substantial question of law to this effect arises in this second appeal and the same is answered accordingly. Since the Will is not proved, the appellants’ counter claim cannot be decreed. -4- RSA No.4808 of 2009 In addition to the aforesaid, since first suit filed by the appellants herein on the basis of the same Will was dismissed in default under Order 9 Rule 8 of the CPC, second Suit No.109 of 1987 filed by the appellants herein was dismissed vide judgment dated 07.12.1989 in view of bar created by Order 9 Rule 9 of the CPC. The same bar also applies to the counter claim set up by the appellants herein. The counter claim is also in the nature of a suit. Appellants herein could not claim the same relief by way of counter claim which they are barred from claiming by filing independent suit in view of bar created by Order 9 Rule 9 of the CPC. For the reasons aforesaid, I find that counter claim of the appellants herein cannot be decreed. Dismissal of counter claim of the appellants herein by the Courts below is, therefore, upheld although for different reasons. There is no merit in the instant second appeal, which is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 13th May, 2011 ‘raj’ -5-