RSA NO.4428 OF 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4428 OF 2011 (O&M) DATE OF DECISION: 6 th December, 2011 Deep Chand .... Appellant Versus Kashmiri Devi .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. * * * * PRESENT: Mr. Dinesh Arora, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.13411 -C of 2011 It is stated that mutation Annexure A-1 has been produced in evidence by both the parties. Accordingly Annexure A-1 is taken on record, subject to all just exceptions. CM No.12788-C of 2011 Allowed as prayed for RSA No.4428 of 2011 Defendant Deep Chand who was successful in the trial Court but has been unsuccessful in the lower appellate court has filed the instant second appeal. It is unfortunate litigation between brother and sister, which is obviously result of dishonesty and greed for property. Respondent-plaintiff Kashmiri Devi who is sister of defendant- appellant Deep Chand, filed suit against him alleging that their father Dharam Singh was owner of the suit land measuring 69 Kanals 14 Marlas, which was RSA NO.4428 OF 2011 (O&M) -2- his ancestral property. The plaintiff being daughter of Dharam Singh is coparcener and co-sharer in the suit land. Dharam Singh died on 26.12.1990. The defendant in collusion with revenue officers got sanctioned mutation No.3327 in his favour for the entire suit land although he has no such right. Plaintiff being co-sharer is owner in possession to the extent of half share in the suit land and the aforesaid inheritance mutation is illegal and null and void. Accordingly the plaintiff sought declaration that the aforesaid mutation is illegal and null and void. She also prayed for relief of joint possession of the suit land. The defendant-appellant inter alia pleaded that their father Dharam Singh had executed Will in his favour in the presence of Narender and Hari Singh as well as in the presence of defendant's three sisters including the plaintiff. Defendant's sisters furnished their affidavits in mutation proceedings admitting execution of Will by Dharam Singh in favour of the defendant. Mutation was accordingly rightly sanctioned in favour of defendant who is owner in possession of the entire suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sonepat vide judgment and decree dated 26.03.2011 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Sonepat vide judgment and decree dated 11.08.2011 and thereby plaintiff's suit has been decreed to the extent that she has been held to be owner in join possession of the suit land as co-sharer to the extent of 1/8th share. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. RSA NO.4428 OF 2011 (O&M) -3- At the out set, it may be mentioned that undisputedly Dharam Singh has left behind one son i.e. Deep Chand defendant-appellant and three daughters i.e. Kashmiri Devi plaintiff-respondent, Tara Devi and Memo Devi. Lower appellate Court assumed notional partition immediately before the death of Dharam Singh and thus he was held to have half share in the suit land and defendant was held to be having the remaining half share in the suit land being coparcener with his father. Accordingly, out of half share of Dharam Singh in the suit land, the plaintiff has been held to be owner of 1/4th share i.e. 1/8th share of the total suit land, there being four class I heirs of Dharam Singh including the plaintiff and defendant and their two other sisters. Learned counsel for the appellant vehemently contended that Tara Devi and Memo Devi remaining two sisters of the parties have admitted the claim of the claimant regarding Will in his favour by their father Dharam Singh. It was also submitted that all the three sisters including the plaintiff furnished affidavits in mutation proceedings admitting the aforesaid Will. It was also argued that Dharam Singh made oral Will in favour of the defendant in the presence of Narender and Hari Singh Lamberdar and out of them, Narender has appeared as witness and supported the defendant's version regarding the Will. It was thus argued that finding of the lower appellate court against the defendant regarding his version of Will is perverse and illegal. I have carefully considered the aforesaid contentions but the same cannot be accepted. The defendant at no stage even alleged in the written statement that it was oral Will. Counsel for the defendant-appellant after going through the written statement admitted this fact. On the other RSA NO.4428 OF 2011 (O&M) -4- hand, it was pleaded that Dharam Singh had 'executed Will' in favour of defendant in the presence of Hari Singh and Narender. This plea would depict that there was some written Will allegedly executed by Dharam Singh in favour of defendant. This conclusion is also manifest from impugned mutation Annexure A-1 where in the revenue officer while sanctioning the mutation has mentioned that Mahipal scribe of the Will, Narender witness and Hari Singh Lamberdar identifier were present before the revenue officer. The very fact that Mahipal alleged scribe of the Will was present as per order sanctioning the mutation would depict that written Will had been set up by the defendant. However, no such written Will has seen the light of the day. Obviously strong adverse presumption would arise against the defendant whose entire case is dependent on the alleged Will. Since there was no such Will, the defendant at subsequent stage came out with the plea that it was oral Will. However, the said plea being beyond his pleadings and also beyond material on record, cannot be accepted. At this stage, it would not be out of place to notice that Narender star witness of the defendant also stated that alleged Will was first and only Will written by him. This statement would also depict that it was written Will and not oral Will. However, this statement of Narender contradicts the order sanctioning the mutation, according to which one Mahipal was scribe of the Will. It is thus apparent that there was no oral or written Will made by Dharam Singh deceased in favour of the defendant and the entire case of the defendant based on the alleged Will is a manipulated affair. The aforesaid conclusion is also supported by other circumstances. Admittedly Dharam Singh died on 26.12.1990 as also mentioned in the impugned mutation. However, mutation was entered on RSA NO.4428 OF 2011 (O&M) -5- 10.12.1990. It is highly surprising and in fact beyond comprehension as to how the impugned inheritance mutation could be entered on 10.12.1990 during the life time of Dharam Singh mentioning future date of his death as 26.12.1990. In column No.15 of the mutation, oral Will has been mentioned. However, order sanctioning the mutation makes contradictory reading. It noted that Mahipal scribe of the Will, witness Narender and identifier Hari Singh Lamberdar were present before the revenue officer. This observation in the order would depict that it was a written Will. However, it has also been observed in the same order that the aforesaid persons along with defendant came present and stated that defendant is only successor as per oral Will. Thus the order sanctioning the impugned mutation makes contradictory reading depicting that there was some written Will and also mentioning that it was oral Will. Thus complete fraud has been played by the defendant, obviously in collision with revenue officials, to get the impugned inheritance mutation sanctioned in his favour. Affidavits allegedly furnished by plaintiff and other two sisters of the parties at the time of mutation proceedings have also not been produced in evidence in the instant lease. The alleged affidavit of plaintiff so furnished in the mutation proceedings was the best evidence against her but the same has been withheld by the defendant, again giving rise to very strong presumption against him. From the aforesaid discussion, it becomes amply clear that no oral or written Will was made by Dharam Singh in favour of the defendant and his entire version on the basis of the alleged Will is cooked up affair. Finding of the lower appellate court against the defendant in this regard is fully justified and is supported by cogent reasons. The said finding is not RSA NO.4428 OF 2011 (O&M) -6- vitiated in any manner nor it is perverse or illegal so as to warrant interference in exercise of second appellate jurisdiction. On the contrary, the said finding is the only finding that can reasonably be arrived at on the basis of pleadings and evidence led by the parties. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is completely meritless and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 6th December, 2011 'raj'