RSA No.248 of 2009(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.248 of 2009(O & M) Date of Decision:03.05.2010 Sukha Singh & Ors. .... appellants Versus Surjit Kaur .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Ashish Aggarwal,Advocate for Mr.Vikram Singh, Advocate for the appellants Mr.Maharaj Kumar, Advocate for the respondent **** RAKESH KUMAR GARG J.(ORAL): This is defendants' second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for joint possession with consequential relief of permanent injunction regarding the suit land was decreed. The plaintiff-respondent had filed the suit alleging that her husband Amrik Singh was the owner of the property in dispute and the appellants who are the brother's son of her husband were cultivating the same to help her husband. Amrik Singh died on 26.12.1998 and after his death when she approached the defendants/appellants to get the mutation entered in her name as sole heir of the deceased Amrik Singh, she was RSA No.248 of 2009(O & M) 2 intimated by the appellants that mutation has been sanctioned in her favour and thus she allowed the defendants/appellants to continue to cultivate the land who paid share of crop to her. When the appellants avoided to make the payment of her share of crop in August 2002, she came to know that they have got the land mutated in their favour on the basis of a Will which was a forged and fabricated documents and was not binding upon the rights of the plaintiff-respondent. Since the defendants refused to admit her claim, necessity arose to file the present suit. The suit was contested by the appellants on the ground that Amrik Singh had executed a Will dated 01.06.1994 in their favour which was a registered one and mutation No.3284 entered and sanctioned on 28.01.1999 and the revenue record was legal and thus they had become the owner of the suit property. Thus the suit of the plaintiff/respondent was liable to be dismissed. Both the courts below on appreciation of evidence found that appellants failed to prove the genuineness of the Will and the fact that the Will in dispute was executed by deceased Amrik Singh. While non- suiting the appellants, the courts below recorded a finding of fact that the original Will dated 01.06.1994 was neither produced nor proved by leading primary evidence. It is not in dispute that the original Will was not produced on record of the case and only certified copy of the Will Ex.D-1 was brought on the record. Not only this, there is nothing on record to suggest that the appellants, at any stage of the suit made any attempt to get the certified copy of the Will proved by leading secondary evidence. No application to lead secondary evidence was moved by the appellants and in fact it is not their case that the conditions set out in Section 65 of the Indian Evidence Act are satisfied. Thus, in view of the aforesaid finding of fact recorded by the RSA No.248 of 2009(O & M) 3 courts below, no fault can be found with the findings of the courts below in view of the law laid down by the Hon'ble Supreme Court of India in Benga Behera & Anr.vs.Braja Kishore Nanda & Ors.2007(3)Civil Court Cases 390(S.C.). Thus, no substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 03.05.2010 neenu