RSA No. 294 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 294 of 2008 (O&M) Date of Decision: 15.03.2011. Pritam Kaur and others .......Appellants Vs. Kulwant Kaur and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Kamal Singh, Advocate for Mr. V.K.Sandhir, Advocate for the appellants. Mr. S.K.Singla, Advocate for the respondents. ..... SABINA, J. Plaintiffs had filed a suit for declaration and possession. The case of the plaintiffs in brief was that Khajan Singh was owner of the land measuring 180 Kanals 17 Marlas. Kartar Kaur was the daughter of said Khajan Singh. Plaintiffs are the children of Kartar Kaur. After the death of Khajan Singh, Kartar Kaur inherited his property. Kartar Kaur died on 19.4.1994. After her death, plaintiffs had inherited the suit property. However, when the plaintiffs approached the Patwari for sanction of mutation qua inheritance of Kartar Kaur in their favour, they came to know about passing of judgments and decrees dated 11.5.1972 and 22.3.1982. Defendants were not RSA No. 294 of 2008 (O&M) -2- related to Khajan Singh. Defendants had no pre-existing right qua the suit property. In fact, the impugned decrees were result of impersonation and fraud. Hence, the suit was filed by the plaintiffs. Defendants, in their written statement, averred that Khajan Singh, during his lifetime, had executed a Will dated 13.6.1967 in favour of defendant No.1. Kulwant Kaur became owner of the suit property on the basis of the Will, executed in her favour. Mutation was also sanctioned qua the suit property in favour defendant No.1. The impugned decrees were suffered by Khajan Singh in favour of the defendants. Mutations were sanctioned in favour of the defendants on the basis of impugned decrees. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the decree dated 11.5.1972 in suit No. 279 and decree dated 22.3.1982 in suit No. 590 and mutations on the basis of above decrees No. 11017 and 14837 are illegal and void ? OPP 2. Whether the plaintiffs are entitled for the decree of possession over suit property as prayed for? OPP 3. Whether plaintiffs have no cause of action or right to file the present suit? OPD 4. Whether suit is within limitation? OPP 5. Whether plaintiffs are estopped by their own act and conduct? OPD 6. Whether Khajan Singh has executed a valid and RSA No. 294 of 2008 (O&M) -3- registered Will dated 13.3.67 in favour of defendant No. 1 and she has become owners on the basis of this Will also? OPD 7. Whether suit is bad for non-joinder of necessary parties? OPD 8. Whether suit has been filed on the basis of wrong facts and defendants are entitled for costs? OPD 9. Relief.” Vide judgment and decree dated 21.2.2006, Additional Civil Judge (Senior Division) dismissed the suit of the plaintiffs. The said judgment and decree were upheld, in an appeal filed by the plaintiffs, by Additional District Judge vide judgment and decree dated 26.3.2007. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Plaintiffs, by way of present suit, had challenged the decrees dated 11.5.1972 and 22.3.1982, suffered by Khajan Singh in favour of defendant No.1 and defendants No. 2 to 4, respectively. The case of the plaintiffs was that the said decrees were result of fraud and impersonation. A perusal of Ex.P-3 and Ex.P-4, copies of the judgments and decrees in the Civil Suit No. 279 dated 4.5.1972, reveal that Kulwant Kaur had filed a suit against her father Khajan Singh for declaration that she was owner in possession of 67 Kanals 1 Marla of land. The said suit was decreed in favour of Kulwant Kaur as Khajan Singh defendant appeared before the court and filed a written statement,admitting the claim of the plaintiff to be correct. RSA No. 294 of 2008 (O&M) -4- Statement of Khajan Singh was recorded and on the basis of the same, the suit of the plaintiff Kulwant Kaur was decreed. Ex.P-2 is the copy of mutation which was sanctioned in favour of Kulwant Kaur on the basis of decree dated 11.5.1972 (Ex.P-4). Gurnam Singh, Sat Pal Singh and Nirmaljit Singh had filed a Civil Suit No. 590 of 24.12.1981 against Khajan Singh, through their mother. A perusal of Ex. D-25, copy of the judgment passed in the said suit dated 22.3.1982 reveals that defendant had appeared before the court and had filed his written statement admitting the claim of the plaintiffs. Defendant also made a statement on oath to this effect and consequently, the suit filed by the plaintiffs Gurnam Singh and others was decreed for declaration that they were owners in possession of the land measuring 316//12(8-0), 1095(1-10), 316//19(8-0), 403//16/2(5-2), 17/2(5-0), 23(7-8), 24(8-0), 25(8- 0), 404//21/2/(5-16), 22/2(5-16), 423//1(8-0), 2(8-0), 9(8-0), 10(8-0). Ex.D-26 is the decree passed by the trial court on the basis of judgment Ex.D-25. Mutation Ex.P-5 was sanctioned on the basis of the decree dated 22.3.1982 (Ex. D-26). The said impugned decrees were never challenged by Khajan Singh during his lifetime. Kartar Kaur also never challenged the said decrees during her lifetime upto 19.4.1994. There is nothing on the record to suggest that Khajan Singh had not appeared before the courts and never suffered the statements in favour of the plaintiffs, who had filed the suits against him. The suits were not only decreed on the basis of written statements filed by Khajan Singh but also on the basis of the statements made by Khajan Singh before the court. The RSA No. 294 of 2008 (O&M) -5- defendants had examined Anil Kumar Gupta, Handwriting Expert as DW-8 who had compared the thumb impressions of Khajan Singh on the written statements, Vakalatnama and Will Ex. D-1 and opined that they matched with the standard thumb impressions of Khajan Singh on the mortgage deed dated 29.4.1963. In these circumstances, the impugned decrees were rightly upheld by the courts below as the plaintiffs had failed to successfully challenge the same. Defendants had also placed reliance on the Will (Ex. D-1). A perusal of the Will (Ex. D-1) reveals that Kulwant Kaur has been described as daughter of Khajan Singh. Khajan Singh bequeathed his property in favour of his daughter Kulwant Kaur. The Will (Ex.D-1) is a duly registered document. The defendants examined Piare Lal, Deed Writer (DW-6) and Karnail Singh (DW-7) one of the attesting witness to the Will to prove its due execution. The Will (Ex.D-1) is dated 13.6.1967. Thus, after executing the Will in favour of his daughter Kulwant Kaur, Khajan Singh suffered the impugned decrees in favour of his daughter and his grand-children. The case of the plaintiffs was that Kartar Kaur was the daughter of Khajan Singh, whereas Kulwant Kaur was not related to him. However, the plaintiffs had failed to establish the said plea. The courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiffs had failed to establish that Kartar Kaur was daughter of Khajan Singh. In these circumstances, the suit filed by the plaintiffs was liable to be dismissed. RSA No. 294 of 2008 (O&M) -6- No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 15, 2011 Gurpreet