IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 523 of 1998. Reserved on : 12.5.2009. Decided on : 5.6.2009. __________________________________________________ Shri Prithi Singh. … Appellant. Versus Shri Harish Chander … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Mukul Sood, Advocate vice Mr. K.D. Sood, Advocate. For the Respondent : Ms. Charu Gupta, Advocate vice Mr. Neeraj Gupta, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Chamba in Civil Appeal No. 6 of 1998 dated 12.10.1998. Brief facts necessary for adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for declaration to the effect that the plaintiff is owner in possession of the land measuring 281 square yards and 4 square feet comprised in Khasra No. 7960 situate in Mohalla, Surara, Chamba Town, hereinafter referred to as the “suit land”. Further case of the 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 plaintiff is that Shri Paras Ram his father was owner of the suit land. He had gifted land measuring 161 square yards 8 square feet to the appellant-defendant No.1 Smt. Netru Devi in 1959. The plaintiff retired from Government service in the year 1983. Shri Paras Ram died on 23.9.1967. He had bequeathed the suit property in favour of the appellant-defendant (hereinafter referred to as the defendant- Smt. Netru) by way of Will dated 30.12.1965. The mutation No. 1197 was attested. Thereafter, she was recorded as owner in possession of the suit land. The suit was contested by the appellants/defendants, hereinafter referred to as the defendants for convenience sake. It is stated that Smt. Netru wife of Shri Paras Ram had given birth to Shri Prithi Singh-defendant No.2. It is further stated that Shri Paras Ram had gifted land measuring 161 square yards and 8 square feet to Smt. Netru and thereafter, he had executed Will in her favour vide which he had bequeathed the suit property in her name. The learned Sub Judge decreed the suit on 27.10.1997. The defendants preferred an appeal before the learned District Judge, Chamba. The learned District Judge, Chamba dismissed the appeal on 12.10.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether Paras Ram was competent to Will the ancestral property to his second wife and son in preference to his son harish Chander from his first wife when he was being looked after and maintained by the appellants and more so, when the t ransfer was for the services rendered by them? 2. Whether the courts below mis-read and mis- construed the Will dated 30.12.1965 of Paras Ram, which was executed long before his 3 death and on the basis of which mutation was attested on 14.3.1968, Ext. P-4 and more so, when the Will had been duly admitted and examined by the court? 3. Whether the loss of Will dated 30.12.1965 was proved after the attestation of mutation and the courts below have erred in excluding the secondary evidence which was duly admitted and examined by the court? 4. Whether the long co-habitation of Paras Ram with Netru and birth of Prithi Singh raised presumption of marriage and legitimacy of Prithi Singh as son of Paras Ram? 5. Whether the suit of the plaintiff was not within limitation and had to be dismissed and decreed declaring the plaintiff owner in possession of the property, is legally sustainable when the plaintiff is not in possession of the property? 6. Whether in view of the fact that gift in favour of Netru and Prithi Singh was valid and the same has been found to be valid, the suit in its entirety could be decreed or the plaintiff could only be granted decree for joint possession in the peculiar facts and circumstances of the case? Mr.Mukul Sood, Advocate vice Mr. K.D. Sood, Advocate has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable. He then argued that the learned Courts below have mis-read and mis- construed the Will dated 30.12.1965. He further contended that the Will was proved in accordance with law and there is presumption of marriage due to long co-habitation of Shri Paras Ram with Smt. Netru. He lastly contended that the suit was not within limitation. 4 Ms. Charu Gupta, Advocate has supported the judgments and decrees passed by both the learned Courts below. Since the substantial questions of law are inter- connected, they have been taken together to avoid repetition of discussion of evidence. I have heard the learned counsel for the parties and perused the record carefully. The Will is dated 30.12.1965. The Will was not produced before the Court. The parties have led only oral evidence. On the basis of Will, the mutation was attested on 4.3.1968. The Will was scribed by Shri Vijay Prasad in presence of marginal witnesses Shri Gopi Nath and Shri Ishwari Prasad. Shri Vijay Prasad and Shri Gopi Nath had died. The case of the defendants is that Shri Ishwari Prasad son of Shri Vyas Dev was the marginal witness. However, DW-2 Ishwari Prasad is son of Shri Laxmidhar. The defendants have not led any secondary evidence as per Section 65 of the Indian Evidence Act. The defendants have failed to prove execution of Will dated 30.12.1965. Consequently, the revenue entries made on the basis of this Will are null and void. The plaintiff has led sufficient evidence to prove that he was in possession of the suit property. There is sufficient evidence on record to show that Smt. Netru was married to Shri Jyoti. His property was inherited by Smt. Netru. The same was sold. The pe- degree table Ext. P-5 shows that Smt. Netru is wife of Shri Jyoti. Defendant No.2- Shri Prithi Singh is shown as son of Shri Jyoti. Smt. Netru has not stepped into witness box. She was most material witness to establish that she was legally married wife of 5 Shri Paras Ram. The defendants have also pleaded that marriage of Smt. Netru was solemnized with Shri Paras Ram according to the local custom. Smt. Netru was not the wife of Shri Paras Ram. Shri Prithvi Singh is not the son of Shri Paras Ram. The plea of custom has neither been pleaded nor proved. The learned Courts below have correctly construed the oral as well as documentary evidence. The defendants have failed to prove the Will alleged to be executed on 30.12.1965. The defendant Smt. Netru was never married to Shri Paras Ram. The Will is un-registered document. They have not registered any F.I.R. The defendants have not taken any steps to summon the file whereby the mutation was attested to ascertain whether the Will was appended or not. The plaintiff was in possession of the suit land and it was only in the year 1991 when the defendants have started raising construction and the suit was filed. In these circumstances, the suit was within limitation. The defendants have failed to plead necessary ingredients of adverse possession. They have failed to show as to since when the possession of Smt. Netru became adverse to the true owner i.e. the plaintiff. It is settled law that mutation does not confer any title. The entries based on mutation are null and void for the simple reason that the defendants have failed to prove the Will alleged to have been executed on 30.12.1965. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. June 5, 2009. (cr) 6