R.S.A.No. 3514 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3514 of 2007 (O&M) Date of decision: 2.12.2009 Lachhman Singh ......Appellant Versus Baggo Bai and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vinod Khungar, Advocate, for the appellant. **** SABINA, J. Plaintiff -appellant filed a suit for declaration, which was dismissed by the Additional Civil Judge (Sr.Divn.), Jalalabad vide judgment and decree dated 1.4.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ferozepur vide judgment and decree dated 6.2.2007. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Briefly stated, the facts of the case of the R.S.A.No. 3514 of 2007 (O&M) 2 plaintiff are that Tara Singh son of Ram Singh (now deceased) father of the plaintiff, defendants No.2 to 8 and husband of defendant No.1 was owner in possession of the following movable and immovable properties:- i) Land measuring 22 kanals 12 marlas comprised of Rect. No.11 killa No.23 (8-0), 25(8- 0), Rect. No.95 killa No. 10/2 (6-12) khewat No.21 Khatoni No.29: ii) Land measuring 40 kanals 10 marlas i.e. 2/3 share of total land measuring 60 kanals 14 marlas comprised of khasra No. 165(0-3), Rect. No.10 Killa No.20(1-16) 21(8-4) Rect. No.11 Killa No.13 (8-0), 14(8-0) 15(2-17) 16(7-14), 17(8-0) 18 (8-0), 24(8-0) Khewat No.22 Khatoni No.30 as well as electric tubewell connection bearing connection No.B-22/5 BHP; and one tractor make Eicher bearing registeration No.PB-05/8187: 3. It was further averred that during his life time, Tara Singh expressed his last desire that after his death the entire estate of movable and immovable property referred in para No.1 shall be devolved upon his two sons i.e. plaintiff and defendant No.2 in equal shares. Tara Singh made a testimony deposition in his sound disposing mind without any coercion or pressure R.S.A.No. 3514 of 2007 (O&M) 3 and executed a will/writing dated 29.8.1988 which was duly read over and explained to Tara Singh who after admitting the same to be correct and true put his left thumb impression underneath the said writing/will in the presence of witnesses namely Gurdial Singh Lambardar, Chiman Singh Panch, Kala Singh, Balbir Singh and defendant No.2. They also thumb marked and signed the above said Will after admitting that the recital made therein are correct and true. It was further alleged that before the death of Tara Singh he was unable to move and was not able to think as he was mentally upset and was not capable to understand for 3 or 4 years. It was averred that defendant No.2 in league and connivance with Darshan Singh Lambardar of village Parbhat Singh Wala and Banta Singh son of Jaila Singh resident of village Mauzam and Mohinder Singh son of Diwan Singh resident of village Chak Khiwa managed to get the sale deed dated 17.6.1997 bearing Waskika No. 1228 allegedly executed by deceased Tara Singh in his favour of the land measuring 22 kanals 12 marlas taking undue advantage of old age and illness of Tara Singh. It was averred that said sale deed is a result of fraud coercion, misunderstanding and is without consideration, hence, R.S.A.No. 3514 of 2007 (O&M) 4 the same is illegal, null and void and inoperative qua the rights of the plaintiff. It was further averred that the defendants were repeatedly requested to admit his claim but to no effect. As such plaintiff filed a suit for declaration with consequential relief of permanent injunction. 4. Upon notice, the defendants appeared and filed written statement taking preliminary objections that the suit is barred by limitation; that the plaintiff has concealed the material facts from the court; that the plaintiff has no locus standi to file the present suit; that the suit is not maintainable and that the proper court fee has not been affixed. On merits, it was denied that plaintiff is having any concern with the suit property. It was pleaded that except the suit property, the family of the parties have another property bearing Rect. No.65 Killa No.1(8-0), 2(8-0) 3 (8-0) 4(8-0) 8(8-0) situated in village khiva, the khasra girdawri of which was got recorded in the name of plaintiff by Tara Singh and deliberately the said property has not been included in the plaint. The pedegree table shown in the plaint was admitted to be correct. It was denied that Tara Singh deceased has executed a Will. The case setout by the defendant is that plaintiff never respected his father R.S.A.No. 3514 of 2007 (O&M) 5 and they were always in strained relations with each other. It was also denied that Tara Singh ever wanted the property to be divided equally rather the plaintiff was given 36 kanals of land as mentioned above and thereafter he had no right in any other property. It was further denied that any will was executed by Tara Singh rather the said document was a complaint moved by the plaintiff in the police station. It was also denied that three or four years prior to the death of Tara Singh he was mentally upset and could not understand anything. It was also denied that sale deed regarding 22 kanals 18 marlas of land was managed in connivance with Darshan Singh, Banta Singh and Mohinder Singh. It was denied that any fraud was committed by defendant No.2 with Tara Singh rather it was pleaded that defendant No.2 has paid the entire market price to Tara Singh with which Tara Singh repaid the loan obtained by him at the marriage of his two daughters. It was further denied that plaintiff is having any share in the suit property. It was pleaded that Tara Singh and plaintiff never enjoyed cordial relations, as such, there were no questions of execution any will in writing in favour of the plaintiff. Lastly, it was prayed that the suit of the plaintiff may be dismissed with costs.” R.S.A.No. 3514 of 2007 (O&M) 6 On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether plaintiff is entitled for declaration as prayed for? OPP 2. Whether plaintiff is entitled for injunction as prayed for? OPP 3. Whether the suit is not maintainable? OPD 4. Whether plaintiff has no locus standi to file the present suit? OPD 4-A Whether the suit of plaintiff is within limitation or not? OPD 4-B Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OPP 4-C Whether the plaintiff has approached the court with clean hands? OPD 5. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff filed a suit for declaration on the basis of Ex.P-2 alleged to have been executed in his favour by his father Tara Singh. The case of the plaintiff was that Ex. P-2 was a will executed by his father in his favour qua the property in dispute. However, the Court below, after appreciating the document Ex.P-2, R.S.A.No. 3514 of 2007 (O&M) 7 have held that the same cannot be treated as a Will. It was merely an application moved by Lachman Singh himself to the Inspector Police of Police Station Jalalabad. It was not recorded in Ex.P-2 that Tara Singh deceased had got it recorded that he admitted the contention that in the Panchayat it had been settled that after his death property would be shared by his two sons. Moreover, during his life time Tara Singh executing the sale deed Ex.P-4 dated 17.6.1997 in favour of Mukhtiar Singh. In these circumstances, the Courts below rightly held that the plaintiff could not claim any benefit on the basis of document Ex.P-2. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 02, 2009 anita