IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1966 of 2007 Date of Decision : September 09, 2009 Gurdial Singh ....Appellant Versus Sukhjinder Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. B.R. Mahajan, Advocate T.P.S. MANN, J. Suit filed by the plaintiff/appellant for joint possession was dismissed by Additional Civil Judge (Senior Division), Tarn Taran on 19.4.2001. Even first appeal filed by him was dismissed by Additional District Judge (Ad hoc), Fast Track Court, Amritsar on 12.4.2007. He is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. In his suit, the plaintiff averred that his father Ujaggar Singh was adopted son of Wasawa Singh and constituted joint Hindu family consisting of him and his three sons, i.e. the plaintiff and defendants No.3 and 4. Said Ujaggar Singh was owner of 1/5th share of land measuring 986 kanals 1 marla which was joint Hindu family coparcenary and ancestral property in his hands as Karta. After his death in the year 1983, he was survived by his three sons and a R.S.A. No.1966 of 2007 -2- daughter, who became joint owners. However, defendants No.1 and 2, who were sons of defendant No.3 claimed that during his life time, Ujaggar Singh had executed a Will in their favour. The plaintiff asserted that his father Ujaggar Singh did not execute any Will as he lacked testamentary capacity. He was hard of hearing and unable to move. Any such Will, as set up by defendants No.1 and 2, was a forged and fabricated document. Mutation sanctioned on its basis was liable to be cancelled. Accordingly, the plaintiff prayed for a decree for joint possession of the suit property. While opposing the suit, defendants No.1 to 3 denied that Ujaggar Singh constituted a joint Hindu family or property in his hands was coparcenary or ancestral property. During his life time, Ujaggar Singh gave 24 acres of land to each of his three sons and his wife while himself retaining 24 acres. On 17.5.1974, he executed a Will in favour of defendants No.1 and 2 and got it registered on 21.5.1974. After the death of Ujaggar Singh in the year 1983, mutation of the land owned by him was sanctioned in favour of defendants No.1 and 2, who were in exclusive possession of the same. Therefore, the suit was liable to be dismissed. Both the Courts below held that the jointness of the family came to an end by partition of the property by Ujaggar Singh. Said Ujaggar Singh executed a legal and valid Will in favour of defendants No.1 and 2 who became owners of the property left by him. Therefore, the plaintiff was not entitled to relief of joint possession. R.S.A. No.1966 of 2007 -3- There was no evidence on the record that the suit property was inherited by Ujaggar Singh from his adoptive father Wasawa Singh. Thus, it could not be assumed that the property in the hand of Ujaggar Singh was ancestral. Even if it was taken that Ujaggar Singh had inherited the suit property the jointness came to an end when he partitioned the property in 5 equal shares. Three shares were given to his three sons while the fourth to his wife. The plaintiff admitted in his cross-examination that since the day the property was given by his father to him and his two brothers, they were in separate possession of their shares and separately cultivating them. Mutation stood sanctioned in their favour. The remaining one-fifth share was retained by Ujaggar Singh. Mutation Ex.D1 regarding partition of land stood sanctioned. Thus, Ujjagar Singh had became absolute owner of his share. The Will was scribed by a regular Deed Writer, who made an entry at Sr. No.181 in his register. It was attested by Shri Sewa Singh Sarhadi, Advocate who was examined by the defendants on commission. Naresh Dutt was the second attesting witness who also stepped into the witness box as DW1 and deposed about the execution of the Will on 17.5.1974. All the sons had already been given their respective shares. An equal share was given to the wife. The testator retained 1/5th share for himself. It had appeared in the evidence that out of her 1/5th share, i.e. 24 acres, Gurdip Kaur wife of Ujaggar Singh gifted 12 acres to sons of the plaintiff and 6 acres to her daughter. No more property was given to Avtar Singh, the third son of Gurdip Kaur R.S.A. No.1966 of 2007 -4- and Ujaggar Singh, as despite being married he was issueless. Thus, merely because there was no mention of his daughter in the Will of Ujaggar Singh, it was no ground to doubt the genuineness of the Will. Similarly, the registration of the Will at Amritsar although the parties resides within the jurisdiction of Tarn Taran tehsil, cannot be taken as a suspicious circumstance. Ujaggar Singh died in the year 1983. On the basis of Will dated 17.5.1974 registered on 21.5.1974, the mutation was sanctioned on 22.2.1983 in favour of defendants No.1 and 2. For the first time, the plaintiff challenged the Will in the year 1994 when he instituted the present suit. Apparently, the suit was an after-thought. The concurrent findings of facts arrived at by the Courts below are based on proper and correct appreciation of the material evidence examined by the parties. These findings cannot be said to be either perverse or suffering from any illegality or infirmity. Therefore, they cannot be reversed, and, that too, in a second appeal. No substantial question of law, much less any of the law points, as claimed by the appellant, arises for determination. The appeal, being devoid of any merit, is, therefore, dismissed in limine. ( T.P.S. MANN ) September 09, 2009 JUDGE satish R.S.A. No.1966 of 2007 -5-