R.S.A.No. 799 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 799 of 2010 (O&M) Date of decision: 1.2.2011 Surjit Singh ......Appellant Versus Harmail Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.K.Singla, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for possession and the case of the plaintiff, in brief, was that Chajju Singh, father of the plaintiff was owner of the suit property. Chajju Singh had two wives. Plaintiff was son of Chajju Singh from his first wife Mukhtiar Kaur, whereas, defendants No.1 and 3 were sons of Chajju Singh from his second wife Bachan Kaur. Chajju Singh has purchased considerable property in the name of his wife Bachan Kaur and had also purchased property in the name of Balbir Singh and Harmail Singh. R.S.A.No. 799 of 2010 (O&M) 2 Mother of the plaintiff had died during the life time of Chajju Singh. After the death of Chajju Singh, plaintiff had succeeded to half share of the estate of Chjju Singh, whereas, defendants had succeeded to the remaining half share in the estate of Chajju Singh. Defendants took forcible possession of the suit property about a year ago basing reliance on a Will alleged to have been executed by Chajju Singh in favour of defendants No.1 and 2. The said Will was a forged and a fabricated document. Plaintiff was entitled to half share in the suit property. In the alternative it was averred that the plaintiff constituted coparcenary with his father Chajju Singh and had interest in the suit property by birth. The plaintiff was entitled to 1/3rd share in the suit property and defendants No.1 and 3 were entitled to remaining 2/3rd share in the suit property. Tamlik Nama dated 17.6.1958 was executed in favour of the plaintiff and Balbir Singh and by virtue of the said document, plaintiff had become owner of property to the extent of half share measuring 11 bighas 17 biswas (pucca bighas). The plaintiff was in cultivating possession of 3 kanals 5 marlas of land bearing khasra No.580/188. Plaintiff had sold 1 bigha 4 biswas to Harmail Singh out of 3 bighas 5 biswas of land and the rest of the land remained in possession of the plaintiff bearing khasra No.581/188. The plaintiff had sold 7 biswas of land to Mukandi Lal vide sale deed dated 23.12.1992. Defendants No.1 and 2 in the their written statement R.S.A.No. 799 of 2010 (O&M) 3 averred that Chajju Singh was being looked after and served by the answering defendants. Chajju Singh had executed a Will dated 26.5.1981 in favour of the defendants. The plaintiff had no right, title or interest in the suit property. The suit property was not ancestral property in the hands of Chajju Singh. The execution of Tamlik Nama dated 17.6.1958 by Chajju Singh was admitted. It was averred that the plaintiff had already sold the land which he had got vide the said Tamlik Nama Defendant No.3 also took up the same pleas as were taken by defendants No.1 and 2. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner of ½ share of suit property and is entitled to its possession? OPP. 2. Whether Chajju Singh executed a valid Will dated 26.5.1981 in favour of the defendants No.1 and 2, if so its effect? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action and locus standi to file the present suit ? OPD 5. Whether the suit is bad for non-joinder and mis- joinder of necessary parties ? OPD 6. Whether the suit is false, frivolous and defendants are entitled to special costs ? OPD 7. Relief. R.S.A.No. 799 of 2010 (O&M) 4 On 14.10.1994, the following additional issue was framed by the trial Court:- “1-A. Whether the property in dispute was the ancestral coparcenary property in hands of Chajju Singh, if so its effect? OPP” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 27.9.2009. Aggrieved by the same, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 18.8.2009 passed by Additional District Judge, Patiala. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The case of the plaintiff was that the suit property was ancestral in the hands of Chajju Singh. Defendants, on the other hand, had denied the said fact. However, the plaintiff had failed to prove the necessary excerpts on record to establish his said plea. Moreover, admittedly a Tamlik Nama was executed by Chajju Singh on 17.6.1958. Plaintiff became owner in possession of the property which he got on the basis of Tamlik Nama. In these circumstances, Chajju Singh was free to dispose of his property in the manner he liked. The case of the defendants is that Chajju Singh had executed a Will dated 26.5.1981 in favour of defendants No.1 and 2. In order to prove the due execution of the Will, defendants examined DW-4 Pawan Kumar Goyal, deed writer, who had scribed the Will. The defendants also examined DW-3 Baldev R.S.A.No. 799 of 2010 (O&M) 5 Singh, who was attesting witness to the sale deed. Defendants further examined DW-6 Avtar Singh, registration clerk, who proved that the Will was duly registered in their office. Thus, the defendants had been successful in establishing the due execution of the Will by Chajju Singh in favour of defendants No.1 and 2. Mutation was also sanctioned on the basis of the Will on 8.10.1989. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. 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 01, 2011 anita