447 1 RegularSecond AppealNo 1888of 1984 08Ml 1 IN THE HIGH COURT OF PUNJAB 8eHARYANA AT CHANDIGARH RegularSecond AppealNol888 0f1984 Date ofdecision 99 00702011 Pawan Kumar 0OeeAppellant i r Versus 0 Surinder Kumar and others 0 I C5 I CORAM HONBLE MR JUSTICE VIJENDER SINGH MALIK Z Presentl Mr Rvlittal SrAdvocate with Mr Sudhir Mittal Advocatc C for theappellant I Ivlr Kabir Sarin Advocate for the Z VIJENDER SINGH MALIK J m 7 This is defendants appealchallenging the judgment Z Ll anddecreepassedbythe First Appellate Court dated22051984 as well as those of the trial Court dated 2204 982 vide which the suit of Surinder Kumar and for declaration to the effect thattheyare owners in possession of theproperties detailed in Schedules 1 ee2 AB and C attachedwith theplaintsituatedin villageDamla Jagadhri 1 and Ambala Cantt hasbeendecreed The case of the plaintiffsl brieOystated is as under . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 1 448 1 1 10 RegularSecond AppealNoe 18880f1984 OcMl 2 1 The plaintiffs are collateralsof Hari Parshad adoted son of Baldev Sahai rlo villageDamla and Ambala Cantt who died issuelesson or about 2821971 at Ambala Cantt He was survivedby 1 1 his widow Kamla Devi who succeededto his estate A pedigree taWe has been made in the plaintto connect the plaintiffswith late Hri 1 Parshadthrough Sukha Mal Kamla Deviwho was issueless r under suspiciouscircumstances on or about 18031975 and all the 0 0 effortsto trace her failed The plaintiffsbeingnear agnatesof lateHari C5 Parshad are entitled to succeed to the suit propertiesTheyare owners I 111 of the same Even in his life time Hari Parshad kept Z BashersharNath Nanu Mal and SurinderKumar with him to helphim in his affairs The defendant had made an application before C2 I District JudgeAmbala claiminghimself to be an heir of late Hari Parshad On interventionof theplaintiffshis application was dismissed Z as withdrawn He irther tried to interferewith the managementof the 1 m plaintiffs over the suit but hefailed in his attempts and his acts 7 Z have cast a cloud on the plaintiffsrighttitle and interest over the suit t properties and therefore theyhavebroughtthe suit Pawan Kumar defendantresistedthe suit and took all possible as objectionsHe denied the civil court 1 1 v11 at Jagadhri to have territorial jurisdiction to entertainthe suit because 1 the immovableproperties involved in this suit are admittedly situatedat Ambala Cantt also The for bytheplaintiffsis also claimed . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 449 1 10 RegularSecondAppealNoe1888 of 1984 08Ml 3 be beyondthe jurisdictionof the civil l to court and is within tl exclusive jurisdictionof the Probate Court i District JudgeAmbal 1 The suit is claimed to be hopelessly barred bylimitation becauseas per their own averments theycamein of the suit properties in th 1 year 1971 after the deathof Hari Parshadand theyhave filed the suit in the year 1980 It is also claimed that the relief soughtin the suit i 0 available under the provisionsof Indian Succession Act and the civil 0 0 Court has no jurisdictionto grantthe relief Suit is also claimed to be I C5 becausedeclarationof title is soughtbytheplaintiffswithout I obtainingprobateletters of administrationor succession certi8cate to Z the estate of late Hari Parshad The suit is also claimed to be mise conceived and preematurebecausethere is no clear averment in the I plaintthat Kamla Devi has died The suit for declaration is also claimed to be not maintainableas theplaintiffs are not in of the suitl Z propertyGivingexhaustive details of the suit property the suit isl m claimed to have not beenproperly valued for the purposeof COurtfee Itj 7 Z is claimed that the value ofthe suit propertyis not less thanRsO00001 and the plaintiffsare bound to pay court fee on the said amount On merits it is denied that the plaintiffsare co4aterals of Hari Parshad Furthertheyare denied to haveany with Hari Parshad The l pedigree table mentionedin the plaintis denied to be correct Pawan 01 Kumar has thenpleaded thefactum ofexecution ofWill byHari Parshad in his favour Accordingto him he was an objectof greatlove and . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 450 1 Regular Second AppealNoe 1888of 1984 OMl 4 t affectionfor Hari Parshad and his wife Kamla Devi The plaintiffs are prayed to be askedto file betterparticulars with regardto Kala Devi if 1 1 sheis alive or dead The plaintiffs are denied to be comingto the court 1 with clean hands Theyare saidto be the truth It is further averredthat with a view to defeat the claim of Pawan Kumar defendant m lll the suit propertythe plaintiffsor their agentshave taken vay the r Will or destroyed the same and has thus been takenbeyond 0 0 thereach ofthe answeringdefendantwhich would be provedbyleading I t5 evidence regarding its contents It is denied that theplaintiffs I are in ofthe suit property It is claimedthat afterthe deathof Z Hari Parshadand alleged ofKamla Devi plaintiffstried to 1 1 enterinto possessionof the immovableproperties t They Ct I are said to have succeeded only in removingimmovable regarding which a criminal complaint was filed by the defendant It 1S Z admitted that the defendant flled a petitionfor grant of lettersof oo administrationto the estate of Hari Parshad by virtue of a valid Will 7 Z executedby him in his favour It is claimed that he withdrew the said petitionwith permission to file anotherone and that thepetitionwas not dismissedon merits Denyingany causeof action to have accruedto the plaintiffsprayer for dismissalof the SUit with specialcosts has be made r e31 1 1 I 1 By way of an additional plea it is averred that the 1 plaintiffs have secretlycut and taken away the valuable trees from the5 . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 451 RegularSecondAppealNoe 1888of 1984 OOMI 5 land of deceasedHari Parshadbesidesthe other valuableslikejewellery silver ware etc It is claimed that the plaintiffsare not en itled to file a for partialdeclaration without disclosing l the proprtiesalready SUlt usurpedbythem 1 A rejoinderwas filed by the plaintiffs to the written 1 statement denyingthe averments of the defendantsand refirming the tr pleastaken in the plaint On the pleadings of the partiesthe following 0 C0 lssues were framedby learnedtrial Courtl I C5 1 Whether the plaintiffsare owners in possessioof the suit I property 20PP Z A Whether the plaintiffsare related to Hari Pat8had or his widow Smt Kamla Devi beingtheir heirs90PP C 2 Whether late Hari Parshadexecutedthe valid will in favour I ofthe defendanton 29041972 20PD Z 3 Whether the suit is not properlyvalued for the purpose of C0 court fee and 7 Z 4e Whether plaintiffs are out of possessionof the su property ll and ifso its effect70PD 5 Whetherthe civil Court has got no jurisdictionto try this 1 suit20PD 1 6 Whether theplaintis not verifiedaccording to law and ifso 01 its effect2OPD 7 Whether the suit is timebarred20PD 1 . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 452 6 Regular Second AppealNoe 1888of 1984 OMl A 6 8 Relief 1 Takingevidence of the parties leamed trialCourt decidedthe suit vide judgment dated22A1982 Learned trial Court has found under issue nos l and ll that the plaintiffs are to Hari Parshad as his agnatesand theyare entitled to succeed to the poperties m of Hari Parshadbeingheirs of Kamla Devi the wife of Hari Pahad on l her death Learned trial court has also found that the plaintiffs are 111 0 U of the suit propertyas owners Executionof a valid Will 111 I C5 favour of the defendantbylate Hari Parshadwas not found to 1oroved I under issue no The question of limitation posedunder issue no7 was Z decided againstthe defendant and observing that the other lssues were 1 not pressedat the time of argumentsthe suit hadbeen decreeddecIaring 0 1 I the plaintiffsto be owners in of the properties dtailed in L0 schedules AB and C attached with the plaint situated in village Z Damla Jagadhri and Ambala Cantt Q1 The challenge of the defendant to this judgment and W2 Z decreebefore the First Appellate Court was without a result favourable Om to him vide judgment and decreedated2205984 Aggrievedbythe concurrent findings of lerned trial Court and learned First Appellate Court the defendanthas broughtthis I Ypl1 RegularSecond Appeal He has also brought an applicatin under Order 41 Rule 27 read with section 151 CPC alongwith the rounds of appealin which he has claimed that the plaintiffshad brouht another 1 . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 453 RegularSecond AppealNo 1888 0f1984 OMI 7 SUlt bearing No26 of 1979 againstSom Nath and Lal sons of Ram Sarupfor ofa Hari Parshad The question in that suit was whetherplaintiffs are owners of the house and propertyin questionaIongwith the other colarers The suit has beendecided againstthe plaintiffsand their suit wasldismissed vide 1 judgment dated04061983 which was passedafterdecision of this suit bythe trial Court In that suit Pawan Kumar is statedbySom Parkash 0 1 C DW6 to be the adopted son of Hari Parshad and his wife Kamla Devi I 0 Som Parkash is also said to have proved a documentin that suit which I wassignedbyPawan Kumar as heir ofHari Parshad Th6 said document Z is also claimed to have beenaccepted bythe court The plaintiffsdid not 0 file anyappealagainst and decreedated461983 The said I judgment dated 46983 and statement of Som Parkash examined as r DW0 in that suit have an important bearing on 1Ssue nos 1 and l4l Z of the presentSU1 Claimingthese documentsto be part of judicial m record it 1S averred that thereis no possibilityof their beingforgedby 7 Z the applicant Hari Parshad is also cIaimed to be a receipt Il book for receiptof rents from various tenants of his shopsin Ambala Cantt The appear on the counteroils of thoseceiptsand theyrelatedto the year 196970 when therewas no the 1 1 fl 1 estate of Hari Parshad It is averredthat of Hari Parshad on 1 those counteroils could be treated as admitted of Hari Parshad and theycould be used for comparisonwith his Oll 1 . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 454 RegularSecondAppealNo 1888 0f1984 O9cMl A 8 ExD1 It is further averred that the appellantdid not producethese documentsearlier becausethejudgment dated46983 was afterthe decision of the presentsuit by the trial Court and of Hari Parshad deceasedon ExD were not challenged bythe plaintiffs after theywere provedby Harbans Lal Deed Writer DU5 So it 1S m claimed that in the interest ofjusticethesedocumentsmaybe admitted lr as additional evidence in order to do complete justiceto the partiesand 0 U to decide the controversybetween them in effective and I C manner The application is supported by Pawan Kumar ibyway of his I affidavit which isjusta repetition ofaforesaid averments Z The application1S opposedby the Accordingto them the application has been filed just o prolongthe I It is averred that the documents mentioned in the application are not annexedwith the application on accollt ofwhich the Z application meritsrejectionThe appellant is denied to be a partyto Civil Suit No26 of 1979 and he cannot be allowed to seek supportfrom that W2 Z suit It is also averred that the said suit was for an entirelydifferent propertywhich hasnothing111common with the presentsuit It is also averredthat the said suit was decided duringthe of the Orst appealbut no application was made before the First AppellateCourt rvl1 1 The above said averments made bywayof are repeated in replyon meritsandtheapplication is prayedt6 be dismissed . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 455 Pt RegularSecondAppealNo 1888 of 1984 OcMl 9 I have heard Shri RSMittal SrAdvocate for the appellant and Mr Kabir Sarin learned counsel for the and havegonethrough the recordofthe case carehllly Additional evidence to be allowed at the stageof regularsecond appealrequiresthe applicantto satis7 the 1 of Order 41 Rule 27 CPC The provisionoule 27 starts with a refrain whereunder the parties appeal Ie to an are sid to be not 0 1 0 entitledto produce additional evidence whether oral or 111 I 40 the AppellateCourt Exceptions to this rule are created thereafterand I the first exception is that the Court from whose decree the appeal1S Z preferredhas refused to admit evidence which oughtto have been 2 admitted The second exceptionrequires the party seekin to adduce additional evidence to establishthat such evidence was not within his I r knowledge or could not be producedbyhim at the time wheii the decree Z appealed againstwas passedespitethe exercise of due diligenceThe 00 third exception requiresthe AppellateCourt to consider if any 7 Z document is requiredto be provedor any witness is reqUiredto be Qm examined to enable it to pronounce the judgment or for any other substantialcause Admittedly no attemptwas ever made either before e the trial Court or before the First AppellateCourt to producethe Sl evidence now soughtto be adducedan additional evidence So thereis noquestion ofre61salon partofthosecourts to admit the samelThereis . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 11 456 RegularSecond AppealNo 1888of 1984 08cMl 10 no averment thatdespite exerciseof due diligencethis evidencewas not within the knowledge of the appellant or could not be at the time when the decree appealedagainstwas passed Thoughthe judgment dated461983 passedin civil suit no26 of 197was notin existence when the trial Court decided the suit yet lt was ln existence 1 when the First AppellateCourt decided the appeal There is no date givenin the application about the recordingof the statemehtof Som 0 Cso Parkash DW0 The onlyreason given for nonlroduction ofthese I 0 documentsearlier is that thejudgment dated 46983 was ponounced I afterthe decision ofthe presentsuit bythe trial Court It is not the case Z about the decision ofthe First Appellate Court which is dated225984 2 much afterthepassingofthe judgment dated461983 1 I Neither the appellant had placedthejudgment dated 46983 or the statement of Som Parkash DWa6 on the Ole longwith Z the applicationnor he is in a positionto file these documentseven Oo today The counterefoilsallegedto be carryingthe of Hari 7 Z Parshad would have been there with the appellantfrom the very tl beginning if he had the allegedrelation with Hari Parshad There is nothing on the record to suggestthat thesedocumentsor the thereon could be treatedas admitted of Hari It is 1 1 therefore clear that the case set up by the appellantfor production of additional evidence does not satisfythe of the flrst two of Order 41 Rule 27 CPC I also fail to find any ieason on . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 457 e RegularSecond AppealNoe 1888 0f1984 08Ml A 11 it to pronounce the judgment or for any other substantialcause The for additional evidence moved by the appellanttherore deservesto be dismissed Thoughsubstantial questionsnine in number had 1 1m beenbrought on recordfrom the side ofthe appellantyet I do not findall ofthem to be questions oflawmuch less substantialquestions oflaw To 0 C3 methe substantialquestions of law involved in this appeal are as undei I 1 C5 1 Whether inadmissible evidence has been taken ilito I consideration on the questionof of the Z with deceasedHari Parshad2 C 2 Whether the admission of the defendantl appellantof the I being lIl of the sOit propertyhas been wrongly and relied upon to Z hold thesuit to be maintainableas well as within 1imitation2 r1 3 Whether the allegedWill of Hari Parishad standsprovedlll 7 Z the statements of Harbans Lal Jain deed writer DW5 and JagdishChanderGoyal DW62 Learned seniorcounsel for the appellanthas drawn eeea Sl my attention towards the pedigreetable producedby the plaintiffsl 1 t to prove their with Hari Parshad deceased The same 1S ExR3 Accordingto himthe document depictstwo lines 6f 1 the descent one from NagarMal and the other from SalagRam . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 458 Cl 1 RegularSecond AppealNoe 1888of 1984 0M1 12 According to him Hari Parshaddeceased thesuccession ofwhose estate 1S 111 dispute 1S the descendant of Nagar Mal while the are descendantsof SalagRam He has submitted that this document does not show NagarMal and SalagRam to be descendantsof common ancestor He has submittedthat for this reason m alone this documenthasno value on thequestion of ofthe plaintiffsl with late Hari Parshad He has also referredto 0 Ca3 ExJO copy of pedigree table producedby the defendant and has 0 submittedthat the same also takes the suit no step rther in the direction of provingthe of the plaintiffswith late Hari Z Parshad Learned senior counsel for the appellantthen drew I my attention to para 80f the judgment of the First AppellateCourt where the Court has been of the View that for the proofof such Z the oral evidence though led bythe can hardly m be of any use He has submittedthat comingto this conclusion in para8 ee7 Z of the judgmentlearned First AppellateCourt was not justifiedlll placingreliance on the oral evidenceto affirm theflndingof the learned trial Court on the questionof of with Hari Parshad He has submittedthat mere evidenceof the witnessesthat the 1 and Hari Parshadused to be called descendantsof 1 1 SukhaMal is ofno value . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 459 j RegularSecond AppealNo 18880f198iOMl 13 Learned senior counsel for the appellanthas further 1 submittedthat Kamla Devi was kidnapped from the Court at Jagadhri on 18031975 Accordingto him some of the were P 111this regardHe has submittedthat after kidnapping Kamla Devi the Will executed by Hari Parshad was also removed He has further 1 submitted that after beingpermittedto lead secondaryevidence regarding the contents of theWill the hasproved on 0 0 the record entryofthe contents ofthe Will in theregisterofHarbansLal I 0 Jain a document writer a copy of which is Exl Accordingto him I the defendantlappellant has examinedHarbans Lal Jain deed writer as Z DWe5 who has provedthe execution of the Will by Hari Parshad 2 C Accordingto him JagdishChander Goyal DH is also examinedto 1 I provethe execution of the Will He has submitted that the Will was 1 executed by Hari Parshad in the presence of JagdishChander Goyal Z DW6 He has submitted that Beni Parshad and GangaRam two attesting witnessesof the Will had died bythe time the defendantcame 7 Z to lead his evidence and therefore theycould not be examined He has r submittedthat the Will is thereforeprovedby the evidence of these witnesses Learned senior counsel for the appellanthasfurther 1 submitted that the case of the from the ver beginningis that the were 1 nottn ofthe SUlt propertiesAccordingto him learned trial Court could not plac . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 460 RegularSecond AppealNo 1888 of 1984 M1 0 14 reliance upon an isolated admissionmadebyPawan Kumar defendant appearing as DW9 Accordingto him that admission is in a case where the consistent stand of the defendant is that the plaintiffsare not the owners or in of the suit propertyand therefore it can be believed that he would have admitted the of the plaintiffs over the suit propertyin this manner He has lrther submittedthat the entire propertyis in possession of the tenants and no evidencehas been 0 0 led by the to prove that theyare in of I 0 the same He has further submitted that 111the absence of proofof I possesslOIlofthe over the suit propertythe suit of Z theplaintiffs for declarationis neithermaintainable nor within limitation r According to him late Hari Parshad died on 28121971 and the suit havingbeen brought on 2721980 is definitely barredbylimitation Learned senior counsel for the appellanthas further Z submittedthat much reliance hasbeenplacedbythe Courts below on the t contents of mutation ExP6 Accordingto him this document is not 7 Z provedon record He has submittedthat mere markingof a document would not dispensewith its proof In this regardhe has cited before me a case reported as Sait Taraiee Khimchand and others ve Yelamarti Satvam and others AIR 1971 SupremeCourt 1865 wherein lt 1S SO 1 Iaiddown Learned senior counsel for theappellant has also cited before r34 me some other cases reported as Sir Mohammed Yusufand another v D and another AIR 1968 Bombav 112 and Ramaii Batanii V . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 461 1 Ol 0 RegularSecond AppealNo 1888 0f1984 I 15 Manohar Chintaman and others AIR 1961Bombav 169 Learned counsel for the on the other hand has submitted that the 0ra1evidence cannot be excluded on the questionof between two persons if the evidence on the same is not available He has submittedthat thereis no 1 evidenceon the recordto provekidnapping ofKamla Devi According to him the himself soughtletters of administration 0 C from District JudgeAmbala and he would not have taken this course if I C5 in his opinionKamla Devi was alive He has lrther submittedthat the I admission of Pawan Kumar cannot be excluded from considerationfor Z the onlyreason that the same is contraryto his stand He has further f submittedthat learned trial Court and the First AppellateCourt have I given valid reasons for not believing the execution of a valid Will by Hari Parshad He has submitted that once the of the Z plaintiffsl with Hari Parshad is established and rn fails to prove the execution of the Will bylate Hari 7 Z Parshad then the natural result was of the claim of the Ll plaintiffsl and passingofdecree in their favour ExP copy of pedigree table depictstwo lines of descent and no connection between the two lines is available in the document However of thesetwo lines of descent side by 1 1 side with a furthermentionofthe fact thattheyare peopleofsingalgotra would be indicative of neamess between the two Iines but would not . uma 2012.06.06 15: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 462 1 1 RegularSecond AppealNo 18880f1984 OcMl 0 16 prove thealleged However the documentExPv6 cannot Ioe discarded as submitted by learned senior counsel for the appellan Therewas no othermode ofproofrequired to order ofAssistant Collector IInd Gradesanctioning this mutation carries a of correctness beingan official act done in the dischar 1 of his offlcial duties Late Hari Parshad donated some portionof his propertyfor the purpose of a templeand the mutation has been 0 0 sanctioned in his presence that Wadhawa Ram Basheshr I 0 Nath and one Hari Parshad not the husband of Kamla Dev are the I collateralsof Hari Parshad and theyhave no objection to the giftmade by Hari Parshad If these facts were not correct and Hari deceasedhad no with thosepersons he could have objected C to the of this fact in this order The mutation was sanctioned 1 in a publicmeetingand the contents of the order passed it Z have to be taken as correct The said document therefore contains an admissionon the partof Hari Parshadof his with Wadha4a 7 Z Ram BashesharNath and Hari Parshad who are either the respondents or their predecessors This evidence detlnitelyprovidesstrong couoboration to the oral evidence of BashesharNath PW1 Tej Ranl PVv2 Gunna Ram PW and Paras Ram PW4 on the alleged 1 1 r9 I find no reason to hold that the evidence