Regular Second Appeal No.1813 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1813 of 2010 (O&M) Date of Decision:-22.7.2011 Novinder Kumar and others ...Appellants Versus Smt. Durga Devi and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.C.B.Goel, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and described the compendium of the pleadings and evidence brought on record by the parties in detail, so, there appears to be no necessity to again reproduce and repeat the same in the instant regular second appeal. However, concisely, the facts, which require to be noticed for the limited purpose of deciding the core controversy, involved in the present appeal and emanating from the record, are that Smt.Durga Devi, daughter of Pujara Ram respondent No.1-plaintiff (for brevity “the plaintiff”), filed the suit for a decree of declaration to the effect that she is co-owner and in possession of ½ share of agricultural land, situated in the area of village Chang, Tehsil and District Bhiwani and the alleged Will dated 25.12.1960, allegedly executed by deceased Pujara Ram in favour of Daulat Ram (since deceased), being represented by his LRs appellant-defendants (for short “the defendants”) and mutation bearing No.5078 dated 25.7.1962 entered and sanctioned in pursuance thereof, are illegal, null, void and not binding on her (plaintiff) rights, with a consequential relief of permanent injunction, restraining the defendants from alienating the suit land in any manner. Regular Second Appeal No.1813 of 2010 (O&M) -2- 2. The case set up by the plaintiff, in brief in so far as relevant, was that Pujara Ram son of Data Ram was the owner of the land in dispute. He had one son Daulat Ram (since deceased-defendant) and one daughter Durga Devi (plaintiff). In this manner, the plaintiff became the co-owner of the suit land, to the extent of ½ share, after the death of her father Pujara Ram in the year 1962. According to the plaintiff that Pujara Ram never executed any Will during his life time, but her brother (defendant) had declared that he will not give any portion of land to her (plaintiff). It was claimed that Pujara Ram was old and remained sick for many years, prior to his death. He had lost his mental faculty. He was not able to differentiate between wrong and right. In the wake of inquiry from the Halqa Patwari, the plaintiff came to know that her brother Daulat Ram forged a fabricated Will dated 25.12.1960, purported to have been made in his favour by their father Pujara Ram and illegally got sanctioned the mutation in his name. The alleged Will and the mutation were stated to be result of fraud, illegal, null, void and were liable to be set aside on the ground that Pujara Ram had never executed any will on 25.12.1960. 3. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that the indicated Will/mutation are illegal, null and void and she became owner and in possession, to the extent of ½ share of the suit land, after the death of her father in the year 1962. The defendants have got no right, title or interest in her (plaintiff) share. She asked the defendants to admit her claim and not to interfere in her co-ownership, but in vain, which necessitated her to file the suit. On the basis of aforesaid allegations, plaintiff filed the suit for a decree of declaration and permanent injunction against the defendants, in the manner depicted hereinbefore. 4. The defendants contested the suit and filed their written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, concealment of material facts, cause of action and locus standi of the plaintiff. The Regular Second Appeal No.1813 of 2010 (O&M) -3- inter-se relation between the parties is not disputed. According to the defendants that Pujara Ram son of Data Ram had executed the Will dated 25.12.1960 during his life time in favour of his son Daulat Ram, which was also got registered. After the demise of Pujara Ram, Daulat Ram became owner and in possession of the suit land, in view of the will, whereupon, mutation No.5078 dated 25.7.1962 was also sanctioned. Plaintiff never raised any objection and she has got no right, title or interest in the land in dispute. The Will and mutation were claimed to be legal and valid. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication of the case:- 1. Whether the plaintiff being legal representatives of her deceased father is joint owner in possession to the extent of ½ share in the disputed land ?OPP 2. Whether the Will duly registered on 25.12.1960 alleged to have been executed by the father of the plaintiff in favour of brother of the plaintiff, who is predecessor in interest of the defendants and the mutation no.5078 dated 25.7.1962 sanctioned on the basis of aforesaid Will and the subsequent entries in the revenue records are wrong, illegal, null and void, not binding on the rights of plaintiff and liable to be set aside?OPD 3. If issues no.1 and 2 are proved, whether the plaintiff is entitled for the relief of injunction as prayed for?OPP 4. Whether the plaintiff has no cause of action or locus standi to file the present suit?OPD 5. Whether the suit of the plaintiff is barred by limitation ?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Relief. The trial Court framed the following additional issues on 16.11.2004:- 1. Whether mutation no.5078 dated 25.7.1962 is null and void and hence, liable to be set aside?OPP 2. Whether Pujara Ram has executed a valid Will dated 25.12.1960 during Regular Second Appeal No.1813 of 2010 (O&M) -4- his life time in favour of the defendants?OPD 6. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court, after taking into consideration the entire oral as well as documentary evidence, decreed the suit of the plaintiff, by means of impugned judgment and decree dated 31.3.2008. 8. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 6.4.2010. 9. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. 10. After hearing the learned counsel for the appellant-defendants, going through the record with his valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the argument of the learned counsel that since it stands proved on record that Pujara Ram executed the Will dated 25.12.1960 in favour of his son Daulat Ram, so, the Courts below committed a legal mistake in decreeing the suit of the plaintiff, lacks merit. 12. As is evident from the record that Pujara Ram son of Data Ram, was the owner and in possession of the land in dispute. He had one son named Daulat Ram (since deceased-defendant) now being represented by his LRs. and one daughter Durga Devi (plaintiff). The plaintiff claimed that after the death of her father in the year 1962, she inherited and became the co-owner and in possession of the joint property, to the extent of ½ share in natural succession. On the contrary, the defendants claimed their title over the entire suit land, on the basis of Will dated 25.12.1960, allegedly executed by Pujara Ram in favour of Daulat Ram, their predecessor-in-interest. The plaintiff pleaded that the Will and mutation are Regular Second Appeal No.1813 of 2010 (O&M) -5- forged and fabricated documents. Thus, it would be seen that the facts of the present case are neither intricate nor much disputed. 13. Above being the position on record, now the short and significant question, though important that arises for determination in this appeal is, as to whether Pujara Ram executed the alleged Will dated 25.12.1960 in favour of Daulat Ram or not? 14. Having regard to the contentions of the learned counsel for the appellant-defendants, to me, the answer must obviously be in the negative, as the defendants have miserably failed to prove the execution of the indicated Will in this relevant connection. 15. What is not disputed here is that the mutation bearing No.5078 was sanctioned on the basis of the alleged will. Neither the original Will nor its certified copy or even its photo copy has seen the light of the day or the door of the Court. What to talk of proving the Will, the defendants did not dare to produce the will on record. According to the defendants that the alleged Will was a registered document, but this fact was falsified by the statement of PW2 Narender Singh, Halqa Patwari, who, on oath, has stated that mutation No.5078 was sanctioned on 25.7.1962 on the basis of an un-registered Will. 16. Sequelly, the trial Court, after taking into consideration the entire material on record, recorded the finding of fact that the defendants have utterly failed to produce the alleged Will on record and to prove its execution and has rightly decreed the suit of the plaintiff. 17. Not only that, the decision of the trial Court was affirmed by the first appellate Court, by virtue of impugned judgment dated 6.4.2010, the operative part of which is (para 16) as under:- “After hearing both the parties at length, it is seen to be a case in which there is no will dated 25.12.1960 in existence. Navinder Kumar DW1 has admitted in his cross examination that he has never seen the will during his life time. Secondly, where it is the case of the appellants that it was a registered Regular Second Appeal No.1813 of 2010 (O&M) -6- will, Narender Singh Patwari PW2 has appeared and stated the mutation No.5078 to have been sanctioned on 25.7.1962 on the basis of an unregistered will. It is a matter of procedure of law that the will must be attached with the copy of mutation which has not been done so in the present case. As far as the onus is concerned, it was very much the duty of the propounder of the will dated 25.12.1960 to produce and prove it as it is the appellants who claim right, title or interest on the basis of it and not the respondent. When the will is not on the file, it becomes immaterial whether the will was registered or unregistered which again is a conflict not discharged by the side of the appellants. The translated copy of the mutation No.5078 shows factum of unregistered will whereas the appellants claim it to be a registered will. Navinder Kumar DW1 has never seen the will and there is no other witness who has appeared on behalf of the appellants. In the circumstances, it has to be considered as Pujara Ram died intestate and the land left by him has to devolve upon his son Daulat Ram and daughter Durga Devi in equal share as per Section 8 of the Hindu Succession Act. Daulat Ram now deceased is represented by appellants who have already taken half share of the property of Pujara Ram in the suit property which now has to devolve upon Durga Devi respondent as well. As far as the period of limitation is concerned, the Hon'ble Punjab and Haryana High Court in a judgment reported in 2008(1) Latest Judicial Reports, 434, titled as “Giani Ram & Ors. Vs. Ompati & Ors”, is very clear that a suit for declaration and possession based on title by inheritance is not barred by limitation under Article 58 and 65 of the Limitation Act, 1963. It has been further held that there is no limitation for asserting pre-existing title. A suit for declaration is not barred as long as the plaintiff's right is subsisting, inheritance does not remain in abeyance and after death of last male holder, his heirs succeed the estate in accordance with law. The heirs are not required to file a suit to establish their right as heirs. However, when the rights are jeopardized the co-owner can file a suit for declaration as the declaratory decree merely recognizing the pre-existing right. The respondent is a co-sharer in the suit property and she has filed the present suit for declaration challenging the mutation of inheritance of Pujara Ram claiming recognition to her pre-existing right in the suit property. Therefore, the respondent has a continuing cause of action to file the civil suit as and when her rights are threatened. There is nothing to show that the respondent was present when the mutation of inheritance was sanctioned.” 18. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the Regular Second Appeal No.1813 of 2010 (O&M) -7- right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, both the courts below have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 19. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Courts below. 20. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 21. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 22. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 22.7.2011 Judge AS Whether to be referred to reporter?Yes/No