IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.191 of 2010 (O&M) Date of Decision:18.11.2010 Karnail Singh and another .....Appellants Vs. Mohinder Kaur and others .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Vinod Arya, Advocate for the appellants. **** RAKESH KUMAR GARG, J. Defendants No.1 and 2 have challenged the judgment and decree of the lower appellate court whereby the suit of the plaintiffs- respondents for declaration to the effect that they are co-owners in joint possession to the extent of 8/35th share in the suit property and for permanent injunction was decreed. As per the averments made in the suit, Nasib Singh son of Amar Singh formed a Joint Hindu Family Coparcenary along with his sons, namely, Karnail Singh, Narmail Singh since deceased (predecessor-in- interest of the plaintiffs), Baljit Singh and Rachhpal Singh. Nasib Singh died on 13.6.1998 leaving behind the plaintiffs and defendants. The properties in dispute were ancestral and coparcenary at the hands of Nasib Singh deceased and in this way, the plaintiffs were co-owners in joint possession to the extent of 8/35th share on the basis of notional partition. However, defendants No.1 to 3 in collusion with revenue officials got R.S.A. No.191 of 2010 (O&M) -2- mutation wrongly sanctioned in their favour on 13.10.1998 and on the basis of the aforesaid revenue entries, the defendants were threatening to transfer and encumber the property in dispute, therefore, the necessity arose to file the present suit. Upon notice, defendants No.1 to 3 appeared and contested the suit. Remaining defendants were proceeded against ex parte. In their joint written statement, defendants No.1 to 3 denied that Nasib Singh formed Joint Hindu Family Coparcenary along with his sons including Narmail Singh (predecessor-in-interest of the plaintiffs- respondents). It was further stated that Narmail Singh was living separately from Nasib Singh. Narmail Singh died in the year 1982 during the life time of Nasib Singh and at that time, he was living separately along with the plaintiff- respondents and had no concern with Nasib Singh. It was denied that Nasib Singh had 1/5th share along with his sons in the suit property. It was further stated that Nasib Singh was the absolute owner of the property in dispute which was his self acquired properties and on the basis of Will dated 8.5.1998, Karnail Singh, Baljit Singh and Rachhpal Singh sons of deceased Nasib Singh had become owners in possession of the property in dispute in equal shares. It was denied that the plaintiffs were co-sharers in joint possession to the extent of share as claimed. In the end, it was prayed that the suit was liable to be dismissed. From the pleadings of the parties, the trial Court framed the following issues:- 1) Whether the suit property is the joint Hindu family coparcenary property as alleged? OPP 2) Whether the plaintiff is owner in possession of suit R.S.A. No.191 of 2010 (O&M) -3- property as alleged? OPP 3) Whether the plaintiff is entitled to declaration as prayed for? OPP 4) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 5) Whether Nasib Singh executed a valid Will dt. 8.5.98 in favour of defendants No.1 to 3? OPD 6) Whether the suit of plaintiffs is not maintainable in the present form? OPD 6A) Whether suit of the plaintiff is under valued for the purpose of court fee and jurisdiction. If so, its effect?OPD 6B) Whether the plaintiff had no cause of action to file the present suit? OPD 6C) Whether defendants No.1 to 3 are entitled to get compensatory costs to the tune of Rs.10,000/- from the plaintiff? OPD 7) Relief. The trial Court after hearing the learned counsel for the parties and going through the evidence, dismissed the suit of the plaintiffs with costs vide judgment and decree dated 7.9.2005. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiffs filed an appeal which was accepted. On the basis of evidence on record, the lower appellate court while dismissing the appeal has observed as under:- R.S.A. No.191 of 2010 (O&M) -4- “In view of the foregoing facts, I am of the opinion that the learned lower court has illegally dismissed the suit for declaration and joint possession filed by the present plaintiffs/ appellants. In my view this suit was liable to be decreed up to the extent of 8/35th share claimed by the present plaintiffs/ appellants through Narmail Singh son of deceased Nasib Singh. So far as the ancestral nature of the property which fell to the share of Nasib Singh is concerned, it is very much clear from the excerpt Ex.PW4/A got proved by the plaintiffs from PW4 Jarnail Singh, Field Kanungo. All the entries made in the excerpt Ex.PW4/A show that the property came to the share of deceased Nasib Singh from his father Amar Singh, who further got this property from his father Baru. This fact is also very much clear from the Jamabandis Ex.PW4/B to PW4/O. As per jamabandi Ex.PW4/P, Baru had four sons namely Inder Singh, Jagir Singh, Wariam Singh and Amar Singh. As such, after the death of Baru, his property was inherited by his these four sons. After the death of Amar Singh, his share was inherited by Nasib Singh. After the death of Nasib Singh, his share in the joint property was to be inherited by his four sons namely Karnail Singh, Baljit Singh, Rachhpal Singh and Narmail Singh. It has also come in evidence that Narmail Singh husband of appellant/ plaintiff Mohinder Kaur and father of appellants/ plaintiffs Manjit Kaur and Amarjit Kaur had died in the year, 1982. As such, after the death of Narmail Singh, the R.S.A. No.191 of 2010 (O&M) -5- present appellants/ plaintiffs, being his LRs, were entitled to the share of Nasib Singh deceased out of the suit property, on the basis of natural successions. But in order to deny the share of present appellants/ plaintiffs through Narmail Singh in the suit property, the respondents/ defendants fabricated a Will dated 8.5.1998 alleged to be executed by Nasib Singh of the suit property, in their favour. Immediately after the death of Nasib Singh on 13.6.l998, the present respondents/ defendants got the mutation of entire suit property sanctioned in their favour on 13.10.1998. But since this Will dated 8.5.1998 is surrounded by suspicious circumstances, it cannot be said that the respondents/ defendants No.1 to 3 are entitled to the entire suit property on the basis of Will dated 8.5.1998.” From the aforesaid observations, it is clear that lower appellate court has recorded a finding to the effect that the property in dispute was ancestral at the hands of Nasib Singh – deceased. No material evidence has been pointed out to controvert the aforesaid findings nor it could be shown as to how the aforesaid findings were incorrect. Thus, the findings cannot be held to be perverse warranting interference of this Court. No substantial question of law arises. Dismissed. November 18, 2010 ( RAKESH KUMAR GARG ) renu JUDGE R.S.A. No.191 of 2010 (O&M) -6-