IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 196 of 2010. Reserved on: 29.04.2011. Decided on: 05.05.2011. ______________________________________________ District Collector, Kangra. … Appellant. Versus Dharam Singh. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For the Respondent : Mr. Ajay Sharma, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala on 8.1.2010 in Civil Appeal No.59-1/XIII-2008. 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) instituted a suit seeking declaration that he was owner in possession of the suit 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - land as detailed in the plaint, situate in Tikka and Mauza Barota, Tehsil Indora, District Kangra, H.P., per Jamabandi for the year 1998-99, as per Will executed by deceased Khushi Ram son of Koudu Ram in his favour on 10.4.1996 and the appellant/defendant (hereinafter referred to as “the defendant” for convenience sake) has no right, title or interest over the suit land and also that mutation No.431, attested on 16.7.2001 regarding the estate of Khushi Ram in favour of defendant was illegal, null and void and deserves to be rectified, with a consequential relief of permanent injunction restraining the defendant from claiming any right, title or interest in the suit land. 3. According to the plaintiff, the suit land was owned and possessed by Khushi Ram. He died issueless on 8.8.1999. Plaintiff was cousin of Khushi Ram. Khushi Ram lived with him (plaintiff) during his last 20 years. He was looked after by the plaintiff in old age. On 10.4.1996, Khushi Ram executed a Will regarding his entire estate in favour of the plaintiff vide Ex.P-1. Plaintiff became owner in possession of the suit land after the death of Khushi Ram. According to the plaintiff, Will executed on 10.4.1996 was legal and valid and deserves to be acted upon. The cause of action arose to him when the mutation was attested on 16.7.2001 vide Ex.D-1. The defendant filed written statement. On merits, it was admitted that before attestation of mutation No.431 on 16.7.2001, the suit land was shown in ownership and possession of Khushi Ram and - 3 - Nikka Ram. Khushi Ram died issueless on 8.8.1999 and his land vested in the defendant and mutation to this effect was attested. It was further contended that Khushi Ram belonged to “Chahang” Caste and plaintiff is from “Bajigar” Caste and he could not be the cousin of Khushi Ram. Civil Judge (Junior Division), Indora framed the issues on 18.1.2006. He dismissed the suit on 9.5.2008. Plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. The appeal was partly allowed and the decree for possession of the suit land on the basis of Ex.P-1 was passed in favour of the plaintiff. The relief of injunction was declined. Hence, this regular second appeal. 4. The appeal was admitted by this Court on 31.8.2010 on the following substantial question of law:- “Whether the first Appellate Court has failed to appreciate the evidence qua the issue pertaining to the validity of the Will, set up by the respondent?” 5. Mr. Vikas Rathore, learned Deputy Advocate General has supported the judgment and decree passed by the Civil Judge (Junior Division), Indora, dated 9.5.2008. 6. Mr. Ajay Sharma, learned counsel for the plaintiff has supported the judgment and decree passed by the learned District Judge, Kangra at Dharamshala, dated 1.8.2010. 7. I have heard the learned counsel for the parties at length and have gone through record carefully. - 4 - 8. Plaintiff has appeared as PW-1. He has tendered his affidavit Ex.PW-1/A in evidence. According to the contents of Ex.PW-1/A, Will was executed on 10.4.1996. Khushi Ram put his thumb impression on the same followed by Dayal Singh and Sheela Devi, PW-2. The scribe of the Will, Gurdas Singh and Dayal Singh, who was second attesting witness of the Will, have died. He further deposed that though Khushi Ram was from a different community, he considered the plaintiff to be his adopted son for all intents and purposes. He has also stated that he had mentioned in the plaint that Khushi Ram considered him to be his son. He also admitted that Khushi Ram was not his cousin. He approached the Patwari for attestation of mutation after two years of the death of Khushi Ram. 9. Sheela Devi has appeared as PW-2. She has also tendered her affidavit Ex.PW-2/A in evidence. According to her deposition, the Will was executed in her presence. Khushi Ram put his thumb impression on the Will. The same was followed by Dayal Singh. Thereafter she put her thumb impression on the same. According to her, the plaintiff looked after Khushi Ram in his last days. She denied in her cross-examination that the Will was forged and admitted that Khushi Ram died issueless. 10. Darshan Kumar, Patwari has appeared as DW-1. He admitted in his cross-examination that plaintiff cultivated the suit - 5 - land on contract under Khushi Ram and also that plaintiff looked after him in his last days. 11. The Will is proved on record as Ex.P-1, dated 10.4.1996. According to the revenue record, Ex.P-2, the suit land was previously owned by Khushi Ram and after his death, mutation No.431 was attested on 16.7.2001. Ex.D-1 is the copy of mutation dated 16.7.2001. According to the learned District Jude, the Will in question, i.e. Ex.P-1 has been duly executed by Shri Khushi Ram. He has relied upon the statement of plaintiff as PW-1 and PW-2. The Will is not registered. 12. The case of the plaintiff, in a nutshell, as per the contents of plaint was that he was the cousin of Shri Khushi Ram. It has come on record that Khushi Ram belonged to Chahang Caste and plaintiff is Bajigar. Thus no reliance can be placed on Ex.P-3 and Ex.P-7, the pedigree tables placed on record by the plaintiff. The plaintiff while appearing as PW-1 has deposed that Khushi Ram considered him to be his son and he was not his cousin. He has also admitted that Khushi Ram belonged to different community. The plaintiff has failed to explain the variance in the plaint and the evidence led by him to establish the relationship with Khushi Ram. Dw-1, Darshan Kumar, Patwari has deposed that plaintiff was cultivating the land of Khushi Ram on contract basis. In case plaintiff was cousin of Khushi Ram, there was no occasion for him to get the land cultivated on contract basis. Khushi Ram - 6 - has died issueless on 8.8.1999. In these circumstances, mutation was attested in favour of defendant-State on 16.7.2001 vide Ex.D- 1. Plaintiff has deposed that he has presented the Will for attestation of mutation before the Patwari after two years of the death of Khushi Ram. He has not explained why the Will dated 10.4.1996 was not produced before the Patwari immediately after the death of Khushi Ram on 8.8.1999. In these circumstances, it is difficult to believe that a valid Will was executed in favour of plaintiff on 10.4.1996. Plaintiff has failed to prove his relationship with Shri Khushi Ram. 13. It is true that only one marginal witness is sufficient to prove the Will according to Section 68 of the Indian Evidence Act, 1872. However, as noticed above, in the present case, the execution of Will is suspicious. It is apparent that the plaintiff is trying to get possession of the land which already vests in the State of Himachal Pradesh on the basis of mutation, dated 16.7.2001 vide Ex.D-1. 14. Consequently, the Will Ex.P-1, allegedly executed in favour of plaintiff on 10.4.1996, cannot be accepted as genuine and the findings recorded by the learned trial Court are affirmed and the findings recorded by the learned District Judge in appeal are set aside as the learned first appellate court has failed to appreciate the evidence led by the parties in right perspective while coming to the conclusion that the Will was genuine. - 7 - 15. Accordingly, in view of the observations and discussion made hereinabove, this regular second appeal is allowed. The judgment and decree passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No.59-1/XIII-2008, dated 8.1.2010 is set aside and the judgment and decree dated 9.5.2008 passed by learned trial Court in Civil Suit No.90 of 2005, is affirmed and restored. No costs. (Rajiv Sharma), Judge. May 05, 2011. (sck).