R.S.A.No. 112 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 112 of 2010 (O&M) Date of decision: 22.2.2011 Gurmeet Kaur @ Swarni ......Appellant Versus Surjit Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.S.Dhami, Advocate, for the appellant. **** SABINA, J. The plaintiffs had filed a suit for declaration that they were exclusive owners in possession of the suit property measuring 1 kanal 4 marlas bearing khasra No.1428. The case of the plaintiffs, in brief, was that the property in dispute was initially owned by Dalip Singh, Babu Singh and Sadhu Singh, sons of Maya Singh. Dalip Singh died issueless in the year 1959. The estate of Dalip Singh was inherited by his brothers Babu Singh and Sadhu Singh in equal shares. Babu Singh died unmarried R.S.A.No. 112 of 2010 (O&M) 2 and issueless in the year 1975 and his estate was inherited by Sadhu Singh. Thus, Sadhu Singh, father of the parties, became exclusive owner of the property in dispute. Sadhu Singh executed a registered Will in favour of the plaintiffs on 23.12.1987. The defendant had filed a suit during the life time of Sadhu Singh claiming herself to be daughter of Dalip Singh and thus, claimed half share in the suit property. Said suit filed by the defendant was dismissed . The defendant, in her written statement, averred that the suit was barred in view of Order 2 Rule 2 of the Code of Civil Procedure. Defendant was the daughter of Dalip Singh and Isri and had, thus, inherited the share of deceased Dalip Singh. During the life time of Dalip Singh, Isri started residing with Sadhu Singh as his wife after deserting Dalip Singh and plaintiffs were daughters of Isri and Sadhu Singh. Plaintiffs had no concern with the estate of Dalip Singh. A Will alleged to have been executed by Sadhu Singh was not a genuine document. Defendant Gurmeet Kaur also filed a counter claim, wherein, she claimed that she was owner in possession of 36 kanals 14 marlas of land being 1/3rd share out of the land measuring 110 kanals 15 marlas. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Sadhu Singh executed a valid Will dated 23.12.1987 in favour of the plaintiff? OPP. 2. Whether plaintiff is owner in possession of the suit property? OPP 3. Whether the plaintiff is entitled to the declaration and R.S.A.No. 112 of 2010 (O&M) 3 injunction prayed for ? OPP 4.Whether the present suit is hit by Order 2 Rule 2 CPC ? OPD 5. Whether the plaintiffs are estopped by their act and conduct to file the present suit ? OPD 6. Whether the defendant-counter claimant is owner in joint possession of the suit land ?OPD 7. Whether the defendant in the alternative is entitled to a decree for joint possession, as pleaded in the counter claim ? OPD 8. Relief.” The trial Court decreed the suit of the plaintiffs and dismissed the counter claim filed by the defendant vide judgment and decree dated 2.2.2006. Aggrieved by the same, defendant preferred an appeal and the same was dismissed vide judgment and decree dated 29.8.2009 passed by Additional District Judge, Nawanshahr. Hence, the present appeal by the defendant. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, Gurmeet Kaur had earlier filed a suit claiming herself to be daughter of Dalip Singh. The said suit filed by Gurmeet Kaur was dismissed. Admittedly, Babu Singh, Dalip Singh and Sadhu Singh were owners of the property in dispute. The defendant in the earlier suit filed by her had failed to establish that she was daughter of Dalip Singh. Sadhu Singh had earlier executed a Will on 30.12.1981 in R.S.A.No. 112 of 2010 (O&M) 4 favour of the plaintiffs and defendant. However, thereafter, Sadhu Singh executed another Will dated 23.12.1987 Ex.P-1 in favour of the plaintiffs. The plaintiffs, in order to prove the Will Ex.P-1 examined PW-4 Nirmal Singh Atwal, attesting witness of the Will. The said witness proved the due execution of the Will. The Will Ex.P-1 is a registered document. Although registration of Will is not compulsory but it goes a long way in proving the genuineness of the Will. In the Will Ex.P-1, it was stated by the executant that earlier he had executed a Will on 30.12.1981 in favour of the plaintiffs and defendant but thereafter, defendant had indulged in a litigation against him and so the executant was executing a fresh Will in favour of the plaintiffs. The judgment passed in civil suit filed by the defendant against Sadhu Singh was also proved on record. In these circumstances, the Courts below rightly held that the Will in question had been duly proved to have been executed by the executant in favour of the plaintiffs. The defendant placed reliance on inquiry report to establish her plea that she was daughter of Dalip Singh. In view of the dismissal of suit filed by Gurmeet kaur claiming herself to be daughter of Dalip Singh, no reliance could be placed on the inquiry report relied upon by the defendant. The defendant could not be held to be daughter of Dalip Singh on the basis of enquiry report relied upon by the defendant. In the earlier suit, the birth certificate produced by the defendant was held to be a procured one and the certificate produced by Sadhu Singh was held to be a genuine one. In these circumstances, the suit filed by the plaintiffs was liable to be decreed and the counter claim filed by the defendant was liable to be R.S.A.No. 112 of 2010 (O&M) 5 dismissed. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 22, 2011 anita