IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 586 of 2007 Date of Decision : July 03, 2009 Gurmeet Kaur and others ...Appellants Versus Shil Kaur and others ....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Rajinder Goyal, Advocate T.P.S. MANN, J. Civil suit was filed by the appellants that they, alongwith Gurmej Singh and Ranjit Singh, were owners in possession in equal shares of the suit land and mutation No. 346 relating to the suit land, was illegal, null and void , ineffective and not binding upon them. They also prayed for a decree for permanent injunction so as to restrain the respondents from interfering in their peaceful possession over the suit property and from alienating the same in favour of any person under the garb of the aforementioned mutation. The suit was dismissed by Additional Civil Judge (Senior Division), Guhla vide judgment dated 12.5.2004 by holding that the plaintiffs failed to prove the due execution of the Will said to have been executed on 21.11.1966 by Gurdial Singh in favour of proforma defendant Gurmej Singh and, therefore, mutation No. 346 entered and sanctioned in favour of all the Class-I legal heirs of R.S.A. No. 586 of 2007 -2- deceased Gurdial Singh was not illegal. The judgment passed by the trial Court was challenged by the plaintiffs by filing an appeal, which was also dismissed by District Judge, Kaithal on October 13, 2006. Thus, the plaintiffs are now in a second appeal in this Court, which they have filed under Section 100 of the Code of Civil Procedure. Learned counsel for the appellants submitted that the Will Ex.P.1 stood duly proved as per the requirements of law. Two attesting witnesses of this Will had appeared in the witness box and deposed about its having been executed by Gurdial Singh on 21.11.1966. As the Will was executed more than 30 years ago, the Court ought to draw presumption attached to such documents. It was also submitted that the suit could not have been dismissed on the question of limitation as the cause of action arose when the defendants actually threatened to take forceful possession of the land from the plaintiffs. Mere entry of mutation in the name of the defendants did not furnish any cause of action. With a view to proving the Will, the plaintiffs examined PW1 Subey Singh, Head Clerk from the office of Sub Registrar, PW2 Gurdeep Singh, PW3 Nathan Lal and Gurmeet Kaur-plaintiff as her own witness as PW4. They also relied upon certified copy of Will dated 21.11.1966 Ex.P1. PW1 Subey Sigh produced copy of the entry of the Will made in the register maintained in the office of the Sub Registrar. The copy of the Will, which after having been entered in the register R.S.A. No. 586 of 2007 -3- was retained in the office of the Sub Registrar, did not bear the thumb impressions, either of its executor or any of the two attesting witnesses. At the same time PW1 Subey Singh deposed about the practice, which was prevalent at the time of the alleged execution of the Will as per which the thumb impressions of the executant and the witnesses were not required to be obtained in the register maintained in the office of the Sub Registrar. Both Gurdeep Singh and Nathan Lal, the two attesting witnesses deposed about the execution of the Will in their presence and after having been read over to them, they had appended their thumb impressions on the original Will. However, Nathan Lal PW3 deposed before the trial Court that he did not state that Gurdeep Singh, the other attesting witness was present at the time of execution and attestation of the Will. Further, the Will was executed in favour of Gurdeep Singh @ Saba, whereas as per the case of the plaintiffs, it was executed in favour of Ranjit Singh and Gurmej Singh. Even if the scribe of the Will had expired and, therefore, could not be examined, the plaintiffs could have summoned the register maintained by him. No material is available on the file from which it could be inferred that the said register was not available. Had the register been produced, the Court could have verified as to whether the executor or the attesting witnesses had put their thumb impressions against the entry made in the same regarding the execution of the Will. The best evidence had been withheld by the plaintiffs from the Court. R.S.A. No. 586 of 2007 -4- After the death of Gurdial Singh, the previous owner of the suit property, the mutation was sanctioned in favour of his heirs on 30.11.1985 on the basis of inheritance. Such a suit as had been filed by the plaintiffs-appellants was required to be filed within a period of 12 years of the death of Gurdial Singh or the sanctioning of the mutation. However, it was filed on 3.1.1998, i.e. beyond the prescribed period of limitation. It is also clear from the material available on the file that after the death of Gurdial Singh, all of his heirs came in possession of their respective 1/5th share and ever since then had been enjoying their rights as such. The concurrent findings of facts arrived at by the lower Courts in dismissing the suit of the plaintiffs-appellants do not suffer from any illegality or infirmity. The substantial questions of law, as framed by learned counsel for the appellants, do not arise for consideration. The appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) July 03, 2009 JUDGE satish