IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2443 of 2008 Date of Decision : December 04, 2009 Kulwinder and others ....Appellants Versus Sucha Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Atul Lakhanpal, Senior Advocate with Mr. R.S.Chahal, Advocate T.P.S. MANN, J. Suit for declaration filed by Mangta, late father of the appellants and proforma respondents No. 9 to 11, was dismissed by the learned Civil Judge (Junior Division), Nawanshahr, on 27.2.2003. Aggrieved of the same, the appellants and proforma respondents No.9 to 11 filed the first appeal, which was also dismissed by the learned Additional District Judge, Nawanshahr, on 27.10.2007. Hence, the present second appeal filed under Section 100 of the Code of Civil Procedure. It was averred in the plaint that the plaintiff was owner of 1/14th share in the suit land measuring 51 kanals 1 marla alongwith the share in the tubewell. He also sought consequential relief of joint possession of the suit land and the tubewell. According to him, after the death of his brother Bakhshish Singh, his estate devolved upon his R.S.A. No. 2443 of 2008 -2- collaterals, i.e., the plaintiff himself and defendants No.1 to 6 in equal proportions. However, after the death of Bakhshish Singh, defendants No.1 and 7 took possession of the suit land and the tubewell belonging to him. On being asked, defendant No.7 declared that late Bakhshish Singh had executed a Will in his favour. According to the plaintiff, the deceased had not executed any such Will and, therefore, the Will, as set up, was fictitious and bogus document. Moreover, no such Will could have been executed regarding the co-parcenary property. Defendants No.1 and 7 while filing their written statement admitted that Bakhshish Singh was owner and in possession of half share of the suit land. However, they claimed that during his lifetime, Bakhshish Singh used to reside with them and they had been serving him. In lieu of those services, Bakhshish Singh executed a registered Will dated 22.5.1995 when he was in a sound disposing mind. Under the Will, Kulbir Singh-defendant No.7 was made the sole beneficiary of the estate left behind by Bakhshish Singh. Accordingly, on the death of Bakhshish Singh on 6.12.1995, the suit land was mutated in their favour on the basis of the aforementioned Will. It is not in dispute that Will dated 22.5.1995 was upheld in civil suit No. 319 of 10.9.1996 titled “Sodhi and others Vs. Mangta and others”, which was decided on 12.3.2001. That suit involved the present parties. The matter in issue was identical, i.e., Will said to have been executed by Bakhshish Singh on 22.5.1995. A specific issue was struck R.S.A. No. 2443 of 2008 -3- in the said suit as to whether Bakhshish Singh executed registered Will dated 22.5.1995 in favour of Kulbir Singh-defendant No.8 therein and defendant No.7 in the present suit. On the basis of the evidence available on the record, a specific finding was given that Kulbir Singh- defendant No.8 therein had proved that the deceased bequeathed the suit land by executing a registered Will in his favour. The said decision would, therefore, operate as res judicata. For that reason, both the learned Courts below rightly denied the relief to the plaintiff in the present suit. Mere fact that no specific issue had been settled in the present suit about the earlier civil Court findings operating as res judicata is no ground to hold that such a legal question cannot be considered in the present suit. The concurrent findings of facts arrived at by the learned Courts below are based upon proper appreciation of the material evidence available on the record. These findings are, therefore, immune from challenge and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the law points, as formulated by learned counsel for the appellants, much less any substantial question of law, arises for determination. The appeal is, therefore, dismissed. ( T.P.S. MANN ) December 04, 2009 JUDGE ajay-1