IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1938 of 2008 Date of Decision : September 14, 2009 Ishwar Singh and others ....Appellants Versus Randhir Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Narender Hooda, Advocate Mr. Sandeep Sharma, Advocate T.P.S. MANN, J. Suit filed by the the appellants for declaration with consequential relief of permanent injunction, was dismissed by the Civil Judge (Junior Division), Rohtak, on 19.11.2005. The appellants then filed an appeal, which was also dismissed by the Additional District Judge, Rohtak, on 7.4.2008. They are now before this Court by way of a second appeal filed under Section 100 of the Code of Civil Procedure. In their suit, the plaintiffs challenged mutation No. 5108 dated 10.7.1996 in respect of the estate left behind by Dhare. According to them, Siri Chand was owner in possession of the suit land. After his death, his four sons succeeded to his estate in equal shares vide mutation No.3512 on the basis of his Will dated 19.5.1971. One of his R.S.A. No. 1938 of 2008 -2- sons, namely, Rohtas died issueless. Resultantly, his other three sons, namely, Bhagwana, Dhare and Balbir succeeded to the entire estate of Rohtas in equal shares vide mutation No. 5104. Bhagwana also died and succeeded by his children vide mutation No. 5105. Dhare died on 31.5.1995. According to the plaintiffs-appellants, said Dhare had executed a Will dated 29.10.1994 in their favour in equal shares. However, mutation No. 5108 of inheritance of Dhare was wrongly sanctioned in favour of his surviving brother Balbir on 10.7.1996, which was not binding upon their rights. They came to know on 12.8.1998 that mutation of inheritance had been wrongly sanctioned in favour of the deceased-Balbir. It were the plaintiffs, who were cultivating the land belonging to the share of Dhare. The entire land was still joint and, therefore, in view of the Will, defendant-Balbir, since deceased, and represented by his legal representatives, had no right to succeed to the estate of Dhare. In his written statement, defendant-Balbir stated that Dhare never executed any Will in favour of the plaintiffs. The said Will had been planted only to grab the land, which earlier belonged to Dhare and had fallen to the share of the deceased. Dhare died intestate and the alleged Will was set up after the sanctioning of the mutation of the estate of Dhare. The defendant was the only legal heir of Dhare and, therefore, mutation had been rightly sanctioned in his favour. He also denied that the plaintiffs were in cultivating possession of the land R.S.A. No. 1938 of 2008 -3- falling to the share of Dhare. As it was the defendant, who was the sole heir of deceased Dhare, he had rightly succeeded to his estate. Learned counsel for the appellants has submitted that deceased-Dhare had executed Will dated 29.10.1994 in favour of the plaintiffs-appellants and, therefore, they were entitled to succeed to his estate. Despite the same, mutation No. 5108 dated 10.7.1996 regarding the estate of Dhare was wrongly sanctioned in favour of defendant- Balbir. Therefore, the learned Courts below erred in law in dismissing the suit filed by the plaintiffs whereas it ought to have been decreed. Learned counsel for the respondents, who are the legal representatives of defendant-Balbir, since deceased, has supported the judgments passed by the learned Courts below by submitting that the plaintiffs had not been able to prove due execution of Will Ex.PX as there were a number of suspicious circumstances from which it could be inferred that the same was not executed by deceased-Dhare and had been forged and fabricated lateron by the plaintiffs. The Will was said to have been executed by Dhare on 29.10.1994. It had not been got registered despite the fact that Dhare survived for a sufficient long time after allegedly executing the Will. As per the plaintiffs, he passed away on 31.5.1995 whereas as per the death certificate Ex.D5 he died on 10.6.1995. The Will in question was not produced before any authority and saw the light of the day only on R.S.A. No. 1938 of 2008 -4- 8.2.2002. If the Will in question was in existence, it ought to have been produced before the revenue authorities when the mutation of inheritance of Dhare was sanctioned in favour of defendant-Balbir on 10.7.1996. On the same day mutation No.5105 was also sanctioned in favour of the plaintiffs in respect of estate of Bhagwana. In such a situation, it cannot be said that the plaintiffs were not aware of the sanctioning of the mutation of estate of Dhare, which was done in the presence of public gathering of village Samchana. Will Ex.PX was said to have been attested by Partap PW2 and Chet Ram PW6. In their respective depositions, they stated that they were not present at the place where it was being written/scribed. However, they were present at some distance from that place. According to Partap, he and Chet Ram were sitting on a raised platform, which was at a distance of 100 yards from the place from where the Will was being written. As per Chet Ram, he and Partap were standing near the boundary wall, which was at a distance of 10 yards from the place where the Will was being scribed. Under these circumstances, they were not in a position to know as to whether the contents of the Will had been read over or explained to the testator by the scribe. To rule out such a suspicious circumstance, the plaintiffs were required to examine the scribe of the Will. They did not do so. The non-examining of the scribe is a strong suspicious circumstance to doubt the genuineness of the Will. R.S.A. No. 1938 of 2008 -5- Dhare was issueless. After his death, deceased-Balbir also succeeded to his estate. With a view to ousting him from his estate, Dhare ought to have mentioned the reasons of doing so. No such reason had been given. This is another suspicious circumstance as regards the genuineness of the Will. From the evidence, it is established that both Partap and Chet Ram were not witnesses to the execution of the Will. While appearing as PW1 Ishwar Singh-plaintiff admitted that his father was a tenant on the land of Partap. Also, he himself while serving in Delhi police had helped Chet Ram in a criminal case registered against him for the offences under Sections 279/304-A IPC. As regards the thumb impression of Dhare said to be appearing on the Will Ex.PX, both the parties examined their respective handwriting and fingerprint experts. Both of them gave their own reasons in support of their respective reports. Under these circumstances, no implicit reliance can be placed upon the testimony of handwriting and fingerprint expert produced by the plaintiffs, who opined that the thumb impressions on Will Ex.PX was that of Dhare. Both the learned Courts below have scanned the evidence threadbare in holding that the Will Ex.PX was full of suspicious circumstances and, therefore, the plaintiffs failed to discharge the onus put on them to prove the genuineness of the Will and then to claim the R.S.A. No. 1938 of 2008 -6- relief of declaration with consequential relief of permanent injunction. As these findings were based upon the evidence, they cannot be said to be either perverse or suffering from any illegality or infirmity or could be reversed in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as framed by learned counsel for the appellants, do not arise for determination. Resultantly, the appeal is dismissed with no order as to costs. ( T.P.S. MANN ) September 14, 2009 JUDGE ajay-1