RSA No.2522 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2522 of 2007 (O&M) Date of Decision: September 1, 2011 Ram Lal .....Appellant v. Smt.Gurdevi and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.V.K.Gupta, Advocate for the appellant. Mr.Naresh Bansal, Advocate for respondent Nos.1 to 4. ..... RAM CHAND GUPTA, J. Present regular second appeal has been filed against judgment and decree dated 3.10.2006 passed by learned Additional District Judge, Jagadhri, partly allowing appeal filed by appellant-plaintiff against judgment and decree dated 8.10.2003 passed by learned trial Court vide which suit filed by appellant-plaintiff was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the judgments passed by both the Courts below. Briefly stated, Ram Dass, now represented by his legal representatives, had filed a suit for declaration that he is joint owner in possession of 1/4th share in the land in dispute and that mutation sanctioned in favour of respondents-defendants on the basis of Will is null, void and not binding upon his rights with consequential relief of permanent injunction restraining respondents-defendants from alienating the land in RSA No.2522 of 2007 (O&M) -2- dispute, in any manner. Plea was taken that plaintiff, defendants no.1 to 3 alongwith their father constituted a joint Hindu family and the property in dispute was also joint Hindu family property of the parties and that in family settlement, specific khasra numbers were allotted to him and defendants no.1 to 3. Physical possession of the same was also delivered to them. Jindu Ram died in the month of September 1989. Will has been propounded by defendants no. 2 and 5 and defendant no.2 claiming ownership of specific khasra No.25//8/1 and defendant no.5 is claiming ownership in khasra no.53 and the remaining land bearing khasra No.23//22 and 25//3 was mutated in the name of appellant-plaintiff and defendants no.1 to 5. The said mutation has been challenged by the plaintiff. Plea was also taken that Jindu Ram was not in sound disposing state of mind at the time of alleged execution of the Will. On the other hand plea was taken by contesting defendants that the property in dispute was self acquired property of their father Jindu Ram and that he had executed a Will during his life time. So far as execution of the Will is concerned, it was for the defendants, who are propounder of the Will, to prove the same. However, in order to prove the Will, no attesting witness of the Will has been examined and only a deed writer has been examined. As per Section 68 of the Indian Evidence Act, examination of one of the witnesses is essential to establish execution of the Will. Scribe of the Will cannot be said to be an attesting witness. In this case attesting witnesses of the Will are Kundan Ram Lambardar Pinjori and Surta Ram and, however, none of them was examined nor anything has come on the record that they are not alive. RSA No.2522 of 2007 (O&M) -3- It has been contended by learned counsel for the appellant that a scribe can be treated as a witness to prove the due execution of the Will and on the point he has placed reliance upon Jamuna Devi v. Sarbati Devi (deid) through L.R's, 2004(3) Civil Court Cases 40. However, in the aforementioned case, it has been observed that scribe of the document had deposed that executant of the Will was personally known to him and that he belonged to his brotherhood. Hence, on the peculiar facts and circumstances of that case he was treated to be one of the attesting witnesses of disputed Will. However, in the present case, the scribe of the Will has admitted in the cross-examination that executant Jindu Ram was not personally known to him and hence, it has been rightly observed by learned appellate Court that he cannot be treated as attesting witness of the Will. Hence, learned first appellate Court while reversing the finding of learned trial Court on Issues no.2 and 5 partly allowed the appeal filed by appellant-plaintiff and the judgment and decree dated 8.10.2003 passed by learned trial Court was modified. Suit of appellant-plaintiff was partly decreed for declaration that mutation No.269 dated 6.7.1989 is illegal and not binding on the rights of the plaintiff. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned appellate Court in passing the impugned judgment and decree. Finding recorded by learned appellate court is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of RSA No.2522 of 2007 (O&M) -4- law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 1.9.2011 (Ram Chand Gupta) meenu Judge