Regular Second Appeal No. 1771 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1771 of 2010 Date of decision : August 19, 2010 Balbir Singh and another ....Appellants versus Rajwinder Kaur and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. P.K. Kataria, Advocate, for the appellants L.N. Mittal, J. (Oral) This is second appeal by two of the six legal representatives of the original plaintiff Sulakhan Singh since deceased, having remained unsuccessful in both the courts below. Sulakhan Singh filed suit against his son Gulzar Singh defendant no. 1 since deceased and represented by respondent nos. 1 and 2 as his legal representatives. Respondent nos. 3 and 4 herein were impleaded as defendants no. 2 and 3. The plaintiff alleged that his brother Nirmal Singh was co-sharer in the suit land but he had left the village in or about 1980-81 and had not been heard of for the last seven years and was therefore, presumed to be dead. Defendant no. 1, however, claimed to have sale deed in his favour allegedly executed by Nirmal Singh and attested by Regular Second Appeal No. 1771 of 2010 -2- defendants no. 2 and 3 as witnesses. The said sale deed is forged and fabricated. Accordingly, the plaintiff sought declaration that he is owner in possession of the suit land as co-owner and defendant no. 1 has no right, title or interest in the suit land. Injunction restraining defendants from interfering with the possession of the plaintiff over the suit land except in due course of law was also claimed. Defendants, inter alia, pleaded that defendant no. 1 has purchased the suit land from Nirmal Singh vide registered sale deed 29.6.1988 for Rs 24,000/- and the plaintiff never came in possession of the suit land. It was denied that Nirmal Singh had left the village in the year 1980-81. It was also pleaded that Nirmal Singh had recently left for Uttar Pradesh where his son Kulwinder Singh is residing. Nirmal Singh also has a daughter Balbiro who is married and residing in Uttar Pradesh. Plaint allegations were controverted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Batala vide judgment and decree dated 1.8.2002 dismissed plaintiff's suit. First appeal preferred by legal representatives of the plaintiff stands dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 8.8.2009. Feeling aggrieved, two of the six legal representatives of the plaintiff have filed the instant second appeal impleading the other legal representatives as proforma respondents. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that Nirmal Singh had left the village in 1980-81 and was, therefore, presumed to be dead as Regular Second Appeal No. 1771 of 2010 -3- he was not heard of for more than seven years. The contention cannot be accepted. The suit was instituted on 26.7.1988. Nirmal Singh allegedly left the village in 1980-81. However, the witnesses of the plaintiff stated that Nirmal Singh had left village 20/30 years back. These oral statements of plaintiff's witnesses are not reliable. No documentary evidence has been produced in support of the aforesaid contention. On the contrary, legal representatives of the plaintiff were impleaded on the plea that Nirmal Singh had executed registered Will dated 18.8.1982. The suit was instituted within less than six years thereof as the suit was instituted on 26.7.1988. It is, thus, apparent that Nirmal Singh could not be presumed to have died because it could not be said that Nirmal Singh was not heard of for more than seven years before filing of the suit. In addition to the aforesaid, defendants have produced sale deed dated 29.6.1988. The said sale deed would also show that Nirmal Singh was still alive. The sale deed is registered one. Its executant Nirmal Singh has not denied its execution. Consequently, in view of proviso to section 68 of the Indian Evidence Act, 1872, the sale deed may be presumed to have been executed by Nirmal Singh. The defendants have also led evidence to prove the said sale deed. It would also depict that Nirmal Singh had not died as alleged in the plaint. It is the specific case of the defendants that Nirmal Singh has also a son Kulwinder Singh and a daughter Balbiro. The plaintiff did not plead that Nirmal Singh was unmarried and issueless. In this view of the matter also, the plaintiff being brother of Nirmal Singh had no right in property of Nirmal Singh who has a son and a daughter. The plaintiff's Regular Second Appeal No. 1771 of 2010 -4- witnesses did state that Nirmal Singh was unmarried and issueless. However, in cross-examination they could not deny the defendants' version that Nirmal Singh has a son and a daughter residing in Uttar Pradesh. Consequently, statements of the plaintiff's witnesses that Nirmal Singh was issueless and unmarried cannot be accepted. On the contrary, the plaintiff did not even plead this fact that Nirmal Singh was issueless and unmarried. In view of the aforesaid, the claim of the plaintiff that he had inherited the share of Nirmal Singh in the suit land cannot be accepted and has been rightly rejected by the courts below. There is concurrent finding of the courts below on this aspect on appreciation of evidence. The said finding is not shown to be perverse or illegal in any manner and therefore, does not warrant interference in second appeal No question of law much less substantial question of law arises for determination in the instant second appeal. Learned counsel for the appellants next contended that the plaintiff was proved to be in exclusive possession of the suit land as per entries in jamabandi and khasra girdawaris and therefore, plaintiff's suit for permanent injunction could have been decreed. However, the courts below have declined the said relief to the plaintiff because the plaintiff's averments were that defendant no. 1 was threatening to dispossess the plaintiff from the suit land illegally and forcibly. However, defendant no. 1 Gulzar Singh has since died during the pendency of the suit. Cause of action for relief of permanent injunction was a personal cause of action against Gulzar Singh. There is no pleading that legal representatives of Gulzar Singh also threatened to dispossess the plaintiff illegally and forcibly. Consequently, Regular Second Appeal No. 1771 of 2010 -5- the relief of permanent injunction has also been rightly declined to the plaintiff. Learned counsel for the appellants contended that relief was also against defendants no. 2 and 3 and could be granted against them. The contention is without any merit because defendants no. 2 and 3 were impleaded as party to the suit being only attesting witnesses of the sale deed dated 29.6.1988 executed by Nirmal Singh in favour of defendant no. 1. There was no other substantive averment against defendants no. 2 and 3 nor defendants no. 2 and 3 claimed any right, title or interest in the suit land and therefore, the question of granting injunction against them also did not arise. For the reasons aforesaid, I find no merit in the instant second appeal which is dismissed in limine. ( L.N. Mittal ) August 19, 2010 Judge 'dalbir'