R.S.A.No.3375 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3375 of 2009 Date of Decision : 18.09.2009 Mohan ...Appellant Versus Rati Pal Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. A.K.Goel, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby sale effected by Krishna, General Attorney of Balbir Singh in favour of defendant No.1 Rati Pal Singh, was dismissed. As per the plaintiff, Balbir Singh was owner of the land measuring 16 Kanals. Balbir Singh died on the intervening night of 10/11.6.1998 at about 3.00 AM and was cremated on 11.6.1998 at about 8.00 AM, whereas the sale deed was executed by his Attorney in the afternoon of 11.6.1998 i.e. after the death of Balbir Singh. Thus, the sale executed by the Attorney is void having been executed after the death of the principal. In fact, the plaintiff relied upon Will dated 26.8.1994 executed by Balbir Singh in his favour to claim estate of the deceased. It was pointed out by the defendants in the written-statement that defendant No.2 was appointed as his General Attorney vide registered deed of power of attorney dated 10.6.1994. The allegation of death of Balbir Singh as pleaded was denied. It was asserted that Balbir R.S.A.No.3375 of 2009 2 Singh in fact died at about 8.00 PM on 11.6.1998 and was cremated at about 10.00 AM on 12.6.1998. After considering the evidence led by the parties, both the Courts have returned a concurrent finding of fact that the plaintiff has failed to prove that Balbir Singh died on the intervening night of 10/11.6.1998. Therefore, sale deed dated 11.6.1998 was found to be perfectly valid and consequently the suit was dismissed. The plaintiff-appellant in order to prove the date and time of death of Balbir Singh, examined his mother Darshna as PW-1. Dina Nath PW-3 and Nanhta PW-4 are the other witnesses, who have been examined by the plaintiff to prove the date and time of death of Balbir Singh. It has been held that their statements are not able to prove the date and time of death of Balbir Singh. On the other hand, daughters of Balbir Singh namely Rajesh DW-9 and Murti Devi DW-11 have deposed that Balbir Singh died on the evening of 11.6.1998 and had been cremated on the next morning of 12.6.1998. Since, it was appreciation of oral evidence, the learned first Appellate Court found that the evidence of the defendants is more reliable and trustworthy than the evidence of the plaintiff-appellant. The findings recorded by the Courts below regarding time and date of death of Balbir Singh are sought to be disputed by reappreciation of evidence alone. Both the Courts have considered the entire oral evidence and returned a finding that the evidence of the defendants is more reliable and trustworthy than the evidence of the plaintiff-appellant. Such finding cannot be permitted to be disputed by reappreciation of evidence alone in second appeal. R.S.A.No.3375 of 2009 3 The other argument raised by the appellant is that the onus of proof has been wrongly placed on the appellant rather it was for the defendants to prove that the sale deed was executed legally and validly. The said argument is again not tenable. It is the plaintiff, who has initiated lis with a plea that Balbir Singh has died on the intervening night of 10/11.6.1998. The onus to prove any fact lies on the person, who alleges the same. Therefore, the onus of proof was rightly placed on the plaintiff. Even otherwise, the onus of proof pales into insignificance when the parties have understood the dispute and have led extensive evidence about the issues involved. Therefore, such an argument at this stage is wholly untenable. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 18.09.2009 (HEMANT GUPTA) Vimal JUDGE