IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3386 of 2011 (O&M) Date of decision: 23rd August, 2011 Banta Singh … Appellant Versus Ajit Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Kumar Singla, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. The suit filed by respondent-plaintiff for declaration to the effect that he is owner of the site measuring 2 Kanals 2 Marlas along with the structure standing on it, detail and description whereof was given in the plaint, on the basis of a registered Will dated 6th March, 1974 executed by his mother namely Bhagan was decreed and as a consequential relief he was held entitled to possession of the suit property on the basis of title. The appellant-defendant, aggrieved against the same, had assailed the judgment of the trial Court before the lower appellate Court, which concurred with the findings returned by the trial Court and dismissed the appeal. Hence, the present regular second appeal. Briefly stated, the respondent-plaintiff had set out a case that his mother Bhagan was owner in possession of the suit property. She had expired on 14th September, 1985. During her lifetime, mother of the respondent-plaintiff had raised construction over the suit property. In Regular Second Appeal No.3386 of 2011 (O&M) the year 1980, Bhagan mother of the respondent-plaintiff had given possession of the suit property to the appellant-defendant as a licencee due to family and good personal relationship, as the appellant-defendant at that time was in need of the property. However, the ownership of the property remained vested in Bhagan. Present appellant-defendant, according to the respondent- plaintiff, had made a promise that he will deliver back the possession as and when he is called upon to do so. After the death of Bhagan, respondent-plaintiff had not demanded the possession of the property back taking into consideration the utmost need of the appellant- defendant in respect of the suit property. It was further pleaded that Bhagan, mother of the respondent-plaintiff, had executed a registered Will on 6th March, 1974 qua the suit property in favour of the respondent- plaintiff and on the basis thereof, respondent-plaintiff has succeeded to the same. Since appellant-defendant had refused to hand over the possession and admit claim of the respondent-plaintiff, he was constrained to file a suit. Upon issuance of notice of the suit, appellant-defendant caused appearance and filed written statement. He raised preliminary objections regarding the suit being barred by limitation, no cause of action having vested in the plaintiff, lack of locus standi and maintainability of the suit. On merits, it was admitted that Bhagan, mother of the plaintiff, was owner in possession of the suit property. However, she had executed a writing in favour of the appellant- defendant and one Gurmej Singh after having received full payment of consideration amount. Gurmej Singh had given his share to the appellant-defendant and therefore, the appellant-defendant is residing in 2 Regular Second Appeal No.3386 of 2011 (O&M) the suit property. He had installed a dung gas connection and had also obtained electricity connection on the suit land. The respondent-plaintiff has no concern with the suit property as the possession of the appellant- defendant over the suit property since 1972 was uninterrupted and he was owner in possession of the property. Factum of the Will in favour of the respondent-plaintiff was specifically denied on the ground that the alleged Will was a forged and fabricated document. The plaintiff filed replication, wherein he reiterated the averments made in the plaint and denied that of the written statement. The trial Court after conclusion of the pleadings, formulated the following issues: “1) Whether the plaintiff is entitled to declaration as prayed for? OPP 2) Whether the plaintiff is entitled to decree of possession as prayed for”? 3) Whether the suit is within time? OPP 4) Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 5) Whether the suit is not maintainable in the present form? OPD 6) Relief.” The plaintiff examined seven witnesses including the Handwriting and Fingerprint Expert and tendered into evidence documents Ex.P4 to Ex.P8. The defendant also examined seven witnesses including Handwriting and Fingerprint Expert. He himself appeared as DW-4. The trial Court decided issues No.1 and 2 in favour of the plaintiff by holding as under: 3 Regular Second Appeal No.3386 of 2011 (O&M) “17. Accordingly, in view of hefty discussion made above, plaintiff has been successful in proving the Will dated 6.3.74 on record executed by Bhagan in favour of plaintiff Ajit Singh after her death. Further plaintiff has been successful in proving the factum of licensee on the part of defendant the lines that the suit land was given to the defendant as licensee for use only and later on he refused to return the same.” The trial Court further held that the Will has been proved by examining Karnail Singh PW-1 and Scribe of the Will namely Manohar Lal Jagga PW-4. The Court also placed reliance upon the testimony of Ajit Singh plaintiff, who had appeared as PW-7. The trial Court also gave due consideration to the plea raised by the defendant that he had purchased the suit property vide a writing dated 3rd January, 1972 from mother of the plaintiff, after paying full consideration. Having examined this plea, the trial Court discarded the same by assigning various reasons. The foremost reason spelt-out by the trial Court to ignore the writing dated 3rd January, 1972 was that the same has not been got exhibited and defendant had failed to prove the same as not even a single witness was examined by the defendant to prove the said writing relied upon to prove purchase of the suit property. Furthermore, the writing was accompanied by various suspicious circumstances. Two leaves of the writing dated 3rd January, 1972 were in different ink and the signatures of witnesses namely Gurdeep Singh, Roor Singh and Thakur Singh were also in different ink. The Court further held that non- production of the writing before the Revenue Authorities for sanction of mutation is another factor not to lend any credence to the writing dated 3rd January, 1972. Another plea raised by the defendant that since his 4 Regular Second Appeal No.3386 of 2011 (O&M) possession was peaceful, uninterrupted and to the knowledge of all, it is sufficient to infer that he is in adverse possession of the property, was also rejected on the ground that the necessary ingredients of adverse possession are lacking. The trial Court thus, concluded as under: “20. Accordingly in view of the discussion made above, defendant has been miserably failed to prove the writing dated 3.1.72 on record and failed to prove the adverse possession. On the other hand, plaintiff has been clearly successful in proving the Will Ex.P1 on record so he is very much entitled to the declaration along with the possession of the suit land. Hence, issue nos. 1 and 2 are decided in favour of the plaintiff and against the defendant.” Issues No.3, 4 and 5 were also decided in favour of the plaintiff and against the defendant. The above said findings of the trial Court have been affirmed by the lower appellate Court. Mr. Ashok Kumar Singla, Advocate appearing on behalf of the appellant, has advanced following arguments to assail the findings returned by both the courts below: (1) That the courts below have not taken into consideration that appellant-defendant had developed the plot in good faith and had raised construction of a house and shop in the plot in question to the notice of Ajit Singh respondent-plaintiff and his mother namely Bhagan. He had also got electricity connection in the plot in question vide orders Ex.DW-5/A and Ex.DW-5/B. (2) That the appellant-defendant Banta Singh, appearing as DW-4 has stated that in his presence Bhagan and her son 5 Regular Second Appeal No.3386 of 2011 (O&M) Ajit Singh plaintiff-respondent had put their thumb impressions/signatures on the writing dated 3rd January, 1972. Furthermore, to this effect is the deposition of Gurmej Singh DW-2, co-purchaser of the appellant-defendant. Anil Kumar Gupta, Handwriting and Fingerprint Expert DW-1 has also compared the signatures of Ajit Singh respondent-plaintiff and has stated that they tally with the signatures on the plaint as well as on replication and vakalatnama. It was stated that thus, there was a grave error on the part of the trial Court not to exhibit the writing dated 3rd January, 1972. (3) That the courts below have also acted against the provisions of law by holding that the examination of marginal witnesses was necessary and thereby became oblivious of the fact that the writing in itself being 30 years old is per-se admissible in evidence with aid of Section 90 of the Indian Evidence Act, 1872. The above said arguments raised by counsel for the appellant are liable to be rejected in view of the concurrent findings of fact given by both the courts below. During the course of arguments, there has been no challenge to the Will Ex.P1 made by Bhagan in favour of the respondent-plaintiff. However, the appellant-defendant has built the entire edifice of his case on the writing dated 3rd January, 1972 along with the circumstances that not only the property is in possession of the defendant but he has improved it by raising construction and obtaining 6 Regular Second Appeal No.3386 of 2011 (O&M) electricity connection to the knowledge of the respondent-plaintiff. Therefore, the conduct of the respondent-plaintiff is sufficient to infer execution of the writing dated 3rd January, 1972. Admittedly, no marginal witness has been examined by the appellant-defendant in support of the said writing dated 3rd January, 1972. Counsel for the appellant while pressing Section 90 of the Evidence Act has lost sight of the fact that both the courts below have discarded the writing dated 3rd January, 1972 on the ground that the same is accompanied by suspicious circumstances. The trial Court has observed that the writing which contained two leaves, each page of it had different ink. Furthermore, by giving sound reasons, the trial Court doubted the authenticity and genuineness of the writing. In view of the concurrent finding of fact, which is based on appreciation of evidence, the writing dated 3rd January, 1972 has been rightly ignored by both the courts below. Once the Will Ex.P1 has been proved and the appellant- defendant has failed to prove the writing from which he was claiming his title and possession, it can be safely said that the findings given by the courts below suffer from no infirmity. Thus, the substantial question of law formulated by counsel for the appellant that the writing dated 3rd January, 1972 could not be ignored by the Courts below in view of the testimony of Anil Kumar Gupta Handwriting and Fingerprint Expert DW-1, appellant-defendant Banta Singh DW-4 and Gurmej Singh, co-purchaser of the appellant- defendant DW-2; requires no attention as the courts below have rightly ignored the writing after appreciation of evidence. Furthermore, another substantial question of law that since the appellant-defendant has come into possession of the suit property on the basis of writing dated 3rd 7 Regular Second Appeal No.3386 of 2011 (O&M) January, 1972 therefore, the courts below should have held him to be owner in possession by way of adverse possession, has also no merit. Counsel has placed reliance upon ‘Achal Reddi v. Ramakrishna Reddiar’ 1990(4) SCC 706 to contend that where a property was transferred by oral agreement and the transferee has been put into possession, for non-registration of the transfer deed the Court has to infer the possession of the transferee as adverse to the owner. This substantial question of law will also not arise in the present appeal as the appellant-defendant has miserably failed to prove that he came into possession of the property by way of the writing dated 3rd January, 1972 and not as a licensee. The appellant-defendant, having failed to prove existence of the writing dated 3rd January, 1972, cannot press this argument that his possession over the suit property was adverse as the courts below have held the version of the respondent-plaintiff that the defendant was a licensee, to be trustworthy. No other argument has been raised. As a result of the above discussion, there is no merit in the present appeal and hence, the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 23, 2011 rps 8