IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2474 of 2009 (O&M) Date of Decision: 10.5.2010 Jagmel Singh. ....... Appellant. Versus Gurdev Singh. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Vijay Lath, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.7280-C of 2009 The application is allowed and delay of 36 days in refiling of the appeal is condoned. R.S.A.No.2474 of 2009 & C.M.No.7281-C of 2009 The plaintiff is in second appeal. He filed a suit for declaration to the effect that he is owner in possession to the extent of 1/3rd share in the properties detailed in the plaint and also prayed that the defendant be restrained permanently from changing the existing position and condition thereof. In the alternative, a decree for joint possession to the extent of 1/3rd R.S.A.No.2474 of 2009(O&M) -2- .... share in the suit properties was also sought. It was pleaded that Banta Singh, who died on 28.4.1993, was owner of the suit properties and during his life time, he executed a registered Will dated 23.6.1992 in favour of the plaintiff, defendant and their mother- Chanan Kaur by which the properties were bequeathed in their favour in equal shares and on the basis thereof, a mutation was accordingly sanctioned. It was averred that 1/3rd share of Chanan Kaur was also inherited by the defendant and he is owner of 2/3rd share of the properties,whereas the plaintiff is owner of 1/3rd share; and that now, the defendant was threatening to change the existing position and condition of the suit properties and also intending to damage the building standing thereon. He, thus, prayed that the suit be decreed. Upon notice, the defendant appeared and contested the suit. It was pleaded that the plaintiff has not disclosed the filing of earlier suit for permanent injunction which was dismissed on 20.2.1999 and another suit for separate possession which was also dismissed on 25.10.1999. It was further pleaded that yet another suit for permanent injunction was instituted by the plaintiff which was dismissed as withdrawn on 17.1.2002. On merits, the claim of the plaintiff was denied and it was averred that the defendant was exclusive owner in possession of the suit properties and the same was never inherited by him from his father-Banta Singh, although it was admitted that Banta Singh has died and his estate has been inherited by his heirs on the basis of registered Will dated 23.6.1992. The defendant averred that the property of Chanan Kaur was inherited by him and he was owner of the property detailed in para (a) of the plaint to the extent of 2/3rd R.S.A.No.2474 of 2009(O&M) -3- .... share, whereas the house detailed in para (b) is his exclusive ownership. Rest of the allegations of the plaintiff were denied being wrong and incorrect. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to declaration, as prayed for?OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for, as a consequential relief?OPP 3. Whether in the alternative, plaintiff is entitled to joint possession to the extent 1/3rd share of suit property?OPP 4. Whether the plaintiff has not complied with the provisions of Order 7 Rule 1 CPC?OPD 5. Whether the present suit is an abuse of the process of law?OPD 6. Whether the plaintiff has not come to the court with clean hands?OPD 7. Whether the suit is bad for non-joinder of necessary parties?OPD 8. Whether the suit is not maintainable in the present form?OPD 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 10. Relief. Both the Courts below have dismissed the suit and the appeal R.S.A.No.2474 of 2009(O&M) -4- .... of the plaintiff and hence, he has preferred the instant appeal. I have heard the learned counsel for the plaintiff and have perused the impugned judgments. The plaintiff claims his title to the suit properties on the basis of Will dated 23.6.1992 which he failed to produce on the record. In this eventuality when the very basis of his claim remained unsubstantiated, the plea of the plaintiff could not be accepted. He had further set up a plea that Banta Singh was owner of the suit properties,but even this fact also remained un-established. That apart, the factum of filing of earlier suits by him was conveniently withheld from the Court. Therefore, the Courts below were right in rejecting the claim of the plaintiff by noticing the fact that a peson who does not come to the Court with clean hands, does not deserve any indulgence. I do not find any infirmity or illegality in the view taken by the Courts below for the simple reason that the entire case of the plaintiff was based on the Will which was not produced and he did not disclose the factum of earlier litigation inter se between him and the defendant. No question of law, much less a substantial question of law has been shown to have arisen for consideration of this Court. There is, thus, no merit in the appeal and the same is accordingly dismissed. C.M.No.7281-C of 2009 which has been moved under Order 39 Rules 1 & 2 read with Section 151 of the C.P.C. for restraining the defendant from changing the existing position, condition and nature of the R.S.A.No.2474 of 2009(O&M) -5- .... suit property and from removing, dismantling and damaging the existing construction thereof during the pendency of the appeal, is also dismissed in view of the above. May 10,2010 ( Mahesh Grover ) “SCM” Judge