R.S.A. No. 1578 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1578 of 2009 (O&M) Date of Decision : 23.4.2009 Nirmal Singh & another .......... appellantss Versus Joginder Kaur & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.S. Bains, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 23.12.2008, passed by the learned Courts below, vide which the suit filed by the plaintiffs / respondent for declaration, claiming that plaintiffs and defendants are joint owners and in possession of the land in dispute, stands decreed. Declaration was also sought that mutation dated 22.4.1985 was wrong, incorrect and, thus, null and void, non est, illegal, in-operative, without any right, ineffective and having no existence in the eye of law and, thus, was liable to be rectified. The plaintiffs claimed themselves to be owners in joint possession with the defendants, primarily on the ground that they were entitled to inherit the property in equal shares with plaintiffs being R.S.A. No. 1578 of 2009 2 daughters of deceased Sarwan Singh, who was admittedly the owner of the suit land. The plaintiffs also claimed that the Will set up by the defendants / appellants was forged and fabricated document and was not a genuine Will executed by Sarwan Singh, as claimed. The suit was contested, on the pleadings that deceased had executed the Will bequeathing the property in favour of the defendant / appellants and on the basis of the said Will, mutation was sanctioned in favour of the defendants / appellants in presence of the plaintiffs on 22.4.1985. The suit was also claimed to be barred by limitation. The learned Courts below on appreciation of evidence, have recorded a concurrent finding of fact, that the plaintiffs are joint owners in possession, to the extent of 1/7th share each, in the suit property. They were also held entitled to injunction as claimed. On issue No.4, it was held that the defendants/ appellants have failed to prove, that Sarwan Singh executed the legal and valid Will dated 15.5.1984. The other issues, the onus of which was on the defendant/ appellants, were also decided against the defendant / appellants. Consequently, the suit stands decreed. Mr. S.S. Bains, learned counsel appearing on behalf of the appellants contends, that the appeal raises the following substantial questions of law for consideration:- R.S.A. No. 1578 of 2009 3 1. Whether the learned Courts below committed an error in holding the suit to be within limitation though the mutation was challenged after 15 years of its sanction ? 2. Whether the learned Courts below have misread the evidence to hold that the Will dated 15.5.1984 did not stand proved ? 3. Whether the learned Courts below committed error in reversing the finding on issue No.4 without request from any of the parties ? In support of the substantial questions of law, the learned counsel for the appellants vehemently contends, that admittedly the mutation was sanctioned on 22.4.1985, and the suit was filed after 15 years, seeking declaration, that the mutation was bad in law, thus, prima facie the suit was barred by limitation and, therefore, the finding of the learned Courts below on issue No.6, are perverse, and liable to be reversed. On consideration, I find no force in the contention raised by the learned counsel for the appellants. The suit filed by the plaintiffs was for declaration and joint possession on the basis of title. The learned Courts below were right, in holding that the suit for joint possession and declaration, on the basis of title, cannot be said to be time barred, especially when the defendant / respondents were co-owners with possession in the suit property by way of inheritance and the relief claimed was, that the mutation did not affect the rights of the plaintiffs. R.S.A. No. 1578 of 2009 4 It is well settled that mutation does not confer any title, thus, it cannot be said that the suit was barred by limitation. The finding of the learned Courts below, therefore, deserves to be affirmed by answering the substantial questions of law against the appellants. The learned counsel for the appellants, contended that the learned Courts below misread the evidence, to hold that the Will was not proved. The contention of the learned counsel for appellants was, that the Will was duly proved, by examining the persons who were aware of the signatures of the attesting witnesses, though one of them was dead. Furthermore, one of the attesting witnesses was won over and was declared hostile. In view of the facts and circumstances of the case, the learned Courts below ought to have accepted the Will, which was otherwise proved by the plaintiff / respondents. Thus, claimed by the learned counsel for the appellants that the findings recorded by the learned Courts below are perverse. The plea of the learned counsel for the appellants cannot be accepted. As appellant / defendants failed to produce the original Will, nor permission was sought to prove the Will by secondary evidence. In absence of the original Will, coupled with the fact that no permission was sought to lead secondary evidence, though it was alleged in the written statement, that the Will was with defendant No.4, the learned Courts below rightly held the will to be not proved. Lastly the contention of the learned counsel for the appellants with regard to reframing of issue No.4, was that though it was assertion of R.S.A. No. 1578 of 2009 5 the plaintiff / respondents that the Will was forged and fabricated document, it was for the plaintiffs to have proved their assertion. The learned Courts below committed an error in reframing the issue No.4, to the prejudice of the defendant / appellants. This plea of the learned counsel for the appellants cannot be accepted. No person can be asked to prove negative. Once the Will was set up by the appellant / defendants, the onus to prove the due execution of the Will and also to explain the suspicious circumstances, if any, was on the defendant / appellants. No error can be found with reframing of issue No.4, as claimed. The substantial questions of law are answered against the appellants. No merit. Dismissed. 23.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE