IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1555 of 2009 Date of Decision: 21.4.2009 Ram Avtar .....Appellant. Versus Ram Mehar ....Respondent. CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr. P.R. Yadav, Advocate for the appellant. **** AJAY KUMAR MITTAL, J. This regular second appeal filed by the defendant is directed against the judgment and decree dated 21.11.2008 passed by the Additional District Judge, Rewari, affirming that of the Additional Civil Judge (Senior Division), Kosli dated 17.5.2006 whereby the suit of the plaintiff for declaration was decreed. Put shortly, the facts of the plaintiff's case are that they are four brothers, namely, Ram Mehar, Ram Kanwar, Mahender and Ram Kishan and he and his brother, deceased Mahender, were joint owners in possession of the land situated at villages Nahar and Jhal, fully detailed in para No.1 of the plaint. The land situated at village Nahar was ancestral land, whereas the land situated in village Jhal was their self-acquired land. It was pleaded that Mahender was unmarried and he died intestate on 16.9.1998 and after his death, the plaintiff had become the owner of 1/3rd share in the estate left by his brother Mahender. It was further pleaded that on 28.12.1998 when the plaintiff R.S.A. No. 1555 of 2009 -2- approached the Halqa Patwari for obtaining the copies of the revenue record of the suit land for taking loan from a bank then he came to know that the defendant who is nephew, brother's son, of said Mahender had got mutations No.2150 dated 8.11.1998 and No.1816 dated 10.11.1998 sanctioned in respect of the suit land on the basis of Will dated 6.7.1998 alleged to have been executed by Mahender in his favour, without any notice to him. According to the plaintiff, the alleged Will was a forged document as his brother Mahender had never executed any Will in favour of the defendant during his life time and, therefore, the said Will was illegal, null and void. The plaintiff asked the defendant to get the mutations and Will dated 6.7.1998 set aside but he refused to do so which gave rise to the filing of the suit for declaration. Upon notice, the defendant filed a written statement and raised various preliminary objections therein. It was pleaded that Mahender during his life time was living with the defendant and the defendant was cultivating his land separately. It was further pleaded that said Mahender had executed the Will dated 6.7.1998 in favour of the defendant in respect of his entire share in their land in the presence of Tula Ram, Numberdar, and one Om Parkash. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. The trial Court on appreciation of the evidence led by the parties held that the Will dated 6.7.1998, Ex.DW1/1A, and the mutations sanctioned on the basis thereof were illegal, null and void and that the plaintiff being the brother of deceased Mahender was entitled to 1/3rd share of his estate. Accordingly, the trial Court vide judgment and R.S.A. No. 1555 of 2009 -3- decree dated 17.5.2006 decreed the suit of the plaintiff declaring the Will dated 6.7.1998, Ex.DW1/1A, and mutation No.2150, Ex.P2, to be illegal, null and void and holding the plaintiff entitled to 1/3rd share of the estate of his brother Mahender. Feeling aggrieved, the defendant approached the lower appellant Court which vide judgment and decree dated 21.11.2008 affirmed the findings recorded by the trial Court and dismissed the appeal as well as the application for leading additional evidence filed during the pendency of the appeal. I have heard learned counsel for the appellant and perused the record with his assistance. Learned counsel for the appellant has made an endeavour to persuade this Court to re-appreciate the findings recorded by the courts below on the basis of the evidence available on record and to come to a different conclusion than the one arrived at by the Courts below. However, he could not point out any illegality or perversity in the judgments and decrees passed by the courts below warranting interference by this Court in the regular second appeal. Both the Courts below have returned a finding of fact that the Will dated 6.7.1998 was surrounded by suspicious circumstances and, therefore, declared the Will and the mutations sanctioned on the basis thereof to be illegal, null and void. No question of law much less the substantial question of law arises in this appeal for consideration of this Court particularly when the defendant had himself admitted that 2-2½ months prior to his death, Mahender was ill and not in a position to understand the things easily R.S.A. No. 1555 of 2009 -4- and this admission of the defendant made it clear that at the time of execution of the Will, Ex.DW1/1A, Mahender was not in a position to execute the Will. In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs. April 21, 2009 (AJAY KUMAR MITTAL) gbs JUDGE C.M.No.4669-C of 2009 in R.S.A. No. 1555 of 2009 Present: Mr. P.R. Yadav, Advocate for the appellant. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 15 days' delay in re-filing the appeal. After hearing the learned counsel for the appellant and perusing the application, the delay of 15 days' in re-filing the appeal is condoned. Civil Misc. application stands disposed of accordingly. April 21, 2009 (AJAY KUMAR MITTAL) gbs JUDGE