IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 213 of 1985 Date of Decision : April 02, 2008 Karnail Singh ....Appellant Versus Smt. Surjit Kaur and another .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. I.P.S. Doabia, Advocate for the appellant. Mr. R.K. Gupta, Advocate for respondent No. 1. Mr. Ravi Kant Sharma, Advocate for respondent No. 2. T.P.S. MANN, J. Suit for declaration and permanent injunction filed by appellant herein was dismissed by learned Sub Judge Ist Class, Samrala on 7.10.1982 and the appeal filed thereafter by him met a similar fate. It was dismissed by learned Additional District Judge, Ludhiana on 1.9.1984. Hence, the present second appeal by the plaintiff-appellant. The plaintiff based his claim on a Will, said to have been executed by Smt. Kishno wife of Kalu on 15.7.1972 in his favour. It was Regular Second Appeal No. 213 of 1985 -2- claimed by him that he used to cultivate the land of Smt. Kishno as a tenant. He was looking-after her and on being satisfied for the services rendered to her by him, she executed the Will in question while she was in a sound disposing mind. However, the defendants wanted to occupy the land of Smt. Kishno forcibly and thus, he filed the suit in question. Defendant-respondent No.1, daughter of Smt. Kishno, opposed the claim of the plaintiff by stating that her mother never resided with the plaintiff, but she used to reside with her and she along with her husband had been looking-after and serving her. No such Will, as claimed by the plaintiff, had been executed by Smt. Kishno. In fact, the same was a forged and fabricated document. This Will was rejected by the Revenue Authorities and the mutation of the land belonging to Smt. Kishno was sanctioned in favour of defendant-respondent No.1. She, accordingly, prayed for dismissal of the suit. Similar plea was taken by defendant- respondent No. 2 by filing separate written statement. After the framing of issues on 23.9.1981, including an issue regarding the validity of Will dated 15.7.1972, learned trial Court gave a number of opportunities to the plaintiff-appellant for leading evidence. On 1.10.1981, no witness was present. The case was adjourned to 5.10.1981 for reply of stay application. The application for stay remained pending and on 10.12.1981, when the case was fixed for recording of the plaintiff’s evidence, Jagir Singh was present so as to depose in favour of the Regular Second Appeal No. 213 of 1985 -3- plaintiff, but the defendants objected to the recording of his evidence on the ground that piecemeal evidence should not be recorded. The Court directed that both the witnesses of Will be produced along with other witnesses on 11.1.1982. Though on the latter date, three witnesses were present but an adjournment was sought by the counsel representing the defendants. On the adjourned date, i.e. 4.2.1982, only one Karnail Singh was present and no other evidence was present. The case was adjourned to 4.3.1982, on which date, aforementioned Karnail Singh, Office Kanugo appeared and produced the mutation file. No other witness was present on behalf of the plaintiff. The case was adjourned to 19.4.1982, on which date two witnesses of the plaintiff were present but their evidence was not recorded on account of the objection raised by learned counsel for the defendants regarding recording of piecemeal evidence. The witnesses were bound down for 17.5.1982. On that date, only one witness was present. On 20.7.1982 no witness of the plaintiff was present. The case was adjourned to 18.8.1982 and the plaintiff was directed to produce his entire evidence. Position remained the same even on 18.8.1982 when no witness was present. The case was adjourned to 7.10.1982. On finding that the plaintiff had failed to produce any evidence in support of the issues, although a large number of opportunities had been given to him, the trial Court found no ground for adjourning the case any further and closed the evidence of the plaintiff on 7.10.1982. As is clear from the above, the plaintiff had failed to produce any evidence in support of his pleadings or on the issues, onus of which Regular Second Appeal No. 213 of 1985 -4- was upon him to prove. In such a situation, the trial Court was fully justified in declining to grant any further opportunity to him to lead the evidence. Even in appeal before the first appellate Court, the plaintiff could not make out any case for setting aside the judgment and decree passed by the trial Court. The records have been perused and it is found that inspite of being given a number of opportunities, the plaintiff did not lead any evidence in support of his pleadings. On one or two occasions, some of his witnesses were present but the defendants rightly opposed the recording of their statements on the ground that piecemeal evidence should not be recorded. Under these circumstances, no fault can be found with the approach of the learned lower Courts in non-suiting the plaintiff-appellant. No question of law, much less any substantial question of law, which is required to be adjudicated upon in second appeal under Section 100 of the Code of Civil Procedure, arises for determination. There is no merit in the appeal and the same is, accordingly, dismissed. No costs. Regular Second Appeal No. 213 of 1985 -5- ( T.P.S. MANN ) April 02, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO