R. S. A. No. 2051 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2051 of 2010 Date of Decision : May 24, 2010 Satya Rani and others .... Appellants Vs. Naresh Kumar and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Ms. Sonia G. Singh, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs, who have been unsuccessful in both the courts below. Appellants filed suit against Prem Chand (since deceased and represented by respondents as his legal representatives). Appellant no.1 is widow of Ram Kumar, whereas appellants no.2 and 3 are sons of Ram Kumar. Ram Kumar and Prem Chand were real brothers. Jogdhayan was also their real brother. The plaintiffs alleged that Jogdhayan was owner of two houses in dispute and was tenant in a shop in dispute. Jogdhayan died in October 1993 leaving behind his wife Shakuntla as his sole legal heir. However, Jogdhayan executed Will dated 01.06.1973 bequeathing that his R. S. A. No. 2051 of 2010 2 wife would be entitled to one-third share on his death and after the death of Jogdhayan's wife Shakuntla, Prem Chand and Ram Kumar – brothers of Jogdhayan will be entitled to the disputed property. Shakuntla died in June 2001. Ram Kumar had died 21.02.1999. The plaintiffs accordingly claimed half share in the suit property. The defendants controverted the allegations of the plaintiffs. It was denied that Jogdhayan was owner of the disputed houses. It was pleaded that one house was purchased by Suresh Kumar son of original defendant Prem Chand and the said purchaser is owner in possession thereof. The shop was in the tenancy of Shakuntla after the death of Jogdhayan. After death of Shakuntla, the tenancy of the shop was inherited by Naresh Kumar – adopted son of Jogdhayan and Shakuntla. Naresh Kumar is natural son of Prem Chand – original defendant. Naresh Kumar is in possession of shop as tenant. Will dated 01.06.1973 pleaded by the plaintiffs was controverted by the defendants. Various other pleas were also raised. Learned Civil Judge (Junior Division), Karnal, vide judgment and decree dated 31.10.2008, dismissed the plaintiffs' suit for partition of the suit property along with relief of permanent injunction. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Karnal, vide judgment and decree dated 20.03.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. R. S. A. No. 2051 of 2010 3 I have heard learned counsel for the appellants and perused the case file. Plaintiffs base their claim on alleged Will dated 01.06.1973 executed by Jogdhayan. However, the plaintiffs failed to prove the same. In fact, the Will has not even been produced in evidence. The plaintiffs were permitted to produce secondary evidence of the Will. However, the plaintiffs did not even produce secondary evidence of the Will. No attesting witness of the Will has been examined as witness, although as per Section 68 of the Evidence Act, it was mandatory to examine at least one attesting witness of the Will. On the other hand, the appellants produced in evidence entry from the register of Notary. However, even the original register of Notary was not produced nor the Notary himself was examined as witness. It thus becomes manifest that the plaintiffs-appellants miserably failed to prove the alleged Will. The plaintiffs are also not natural heirs of Shakuntla – widow of Jogdhayan. Admittedly, Jogdhayan had no issue of his own. Shakuntla inherited the property from Jogdhayan. Consequently, on the death of Shakuntla, the property was to be inherited by heirs of Jogdhayan. However, the plaintiffs are not heirs of Jogdhayan on the death of Shakuntla because Ram Kumar – predecessor of the plaintiffs, had pre- deceased Shakuntla. On the other hand, Prem Chand – defendant, brother of Jogdhayan, was alive when Shakuntla died. Also, one other brother of R. S. A. No. 2051 of 2010 4 Jogdhayan is also alive. Consequently, brothers of Jogdhayan were his only natural heirs and the plaintiffs being widow and sons of deceased brother of Jogdhayan are not natural heirs of Shakuntla – widow of Jogdhayan. Thus, examined from any angle, the plaintiffs have no right, title or interest in the suit property. Both the courts below have arrived at concurrent finding against the plaintiffs, on appreciation of evidence. There is no infirmity in the said finding. In fact, no other finding could be arrived at, particularly for the reasons mentioned herein before. Consequently, finding of the courts below cannot be said to be perverse or illegal so as to warrant interference at the hands of this Court in Regular Second Appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus without any merit and is accordingly dismissed in limine. May 24, 2010 ( L. N. MITTAL ) monika JUDGE