RSA No.4279 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.4279 of 2011 Date of decision: 08.12.2011 Balwinder Singh and Others ...Appellants Versus Jagroop Singh and Others ....Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:Mr.K.K.Garg, Advocate for the appellants. * * * RITU BAHRI,J. Civil Misc. No.12377-C of 2011 This is an application filed under Section 151 CPC read with Rule 5, Chapter 1-A, Volume 5 of High Court Rules and Orders for condonation of delay of 253 days in re-filing the appeal. For the reasons stated in the application, delay of 253 days in re-filing the appeal is condoned. Civil Misc. No.12378-C of 2011 This is an application filed under Section 148/149 IPC for enlargement of time for making up of deficiency of court fee. Allowed as prayed for. R.S.A. No.4279 of 2011 Challenge is of the judgment dated 06.10.2010 passed by the Additional District Judge, Barnala whereby, the appeal against the judgment and decree dated 08.09.2008 passed by RSA No.4279 of 2011 2 the Civil Judge (Junior Division), Barnala has been dismissed. Brief facts of the case are that the plaintiffs had filed the suit for declaration that they are owners of ¾ share of the suit property left by their father Kapur Singh son of Bakhtaur Singh. The defendants are owners of ¼ share in the land measuring 146 kanals 4 marlas. The father of the plaintiff Kapur Singh died on 19.11.2002 and the defendants be restrained from alienating the suit property. On notice, the defendants appeared and filed the written statement in which they have taken legal objection of locus- standi and cause of action to file the present suit filed by the plaintiffs. On merits, it was submitted that the suit property was not Joint Hindu Family Ancestral Coparcenary property. The parties are Jat Sikh and as such, they are governed custom of Sikhism. Defendants No.2 and 3 and Sarabjit Kaur wife of Bhola Singh are owners of the land having been owned by Kapur Singh, on the basis of registered Will bearing No.347/3 dated 17.10.2002. Kapur Singh during his life time filed Civil Suit bearing No. 295 dated 19.12.97 which was decided on 27.02.98 titled as “Balwinder Singh etc. Vs. Kapur Singh” vide which he had partitioned the suit property, on the basis of the family settlement. On the basis of said judgment and decree, plaintiff Nos. 1 to 3 and defendant No.1 are owner in possession of land having been received by them. On the basis of Will executed by Kapur Singh, the defendants got the property transferred in their name. During his life time, Kapur Singh resided with the RSA No.4279 of 2011 3 defendants. On 06.06.2003, the trial court framed the following issues:- 1. Whether the plaintiffs are entitled to declaration? OPP. 2. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPD. 3. Whether the plaintiffs have no locus standi to file the present suit? OPD. 4. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD. 5. Whether suit of the plaintiffs is not maintainable in the present form? OPD. 6. Whether suit of the plaintiff is within limitation? OPD. 7. Whether suit of the plaintiffs is false, frivolous and filed just to harass the defendants? OPD. 8. Relief. However, an additional issue No.7-A was framed by the trial court on 19.11.2003: 7-A Whether Kapur Singh deceased executed a valid Will dated 17.10.2002? If so, its effect? OPD. In order to prove the Will, the defendants examined Natha Singh, Namberdar as DW3, who was an attesting witness of the Will dated 17.10.2002. He has proved the will and has supported the case of the defendants. He had also stated that Kapur Singh had executed Will and the said Will was got scribed at the instance of Kapur Singh. The defendants could not examined the other witness Gurchet Singh as he had died. The Will has been duly proved as per Section 68 of the Evidence Act, 1972 and Section 63 of the Hindu Succession Act. The plaintiffs have failed to establish that the property was a Joint Hindu RSA No.4279 of 2011 4 Family and Coparcenary. After the partition proceedings, the plaintiffs have admitted that as per family settlement on the basis of Civil court decree, the property owned by Kapur Singh was partitioned. After partition, Kapur Singh was left four acre of land. The findings on issue Nos.1 and 7-A have been decided against the plaintiffs and in favour of the defendants. The findings on issue No.3, in view of the fact that the will executed by Kapur Singh deceased had executed a valid will in favour of his grandsons Bhola Singh, Kuldeep Singh and grand daughter-in-law Sarbjit Kaur, the plaintiffs have no locus standi to file this issue. The issue was decided in favour of defendants and against the plaintiffs. Issues No.5, 6, and 7 were not pressed by the defendants. Since the plaintiffs had not claimed relief of inheritance but had claimed correction of the zamabandi from the name of Kapur Singh to the extent of ¾ share and they had challenged the Will executed by Kapur Singh, the suit was held to be not maintainable and dismissed. The findings recorded by the trial court have been affirmed by the appellate court vide judgment and decree dated 06.10.2010. It is held that the consent decree passed in Civil Suit No.295 of 19.12.1997 decided on 27.02.1998 had given respective shares to plaintiff Nos.,1,2 and 3 and defendant No.1 on the basis of family settlement. Thereafter, the plaintiffs and defendants are in possession of the land as owners. As per the Will dated 17.10.2002, the defendants No.2 and 3 and RSA No.4279 of 2011 5 Smt.Sarabjit Kaur inherited the property left by Kapur Singh. The Will is valid and duly proved by the attesting witness Natha Singh (DW3). In view of the consent decree, the plaintiffs could not led any evidence. The suit land was Joint Hindu family coparcenary property. The appeal was dismissed on 06.10.2010. Mr.K.K.Garg, counsel for the appellants has not been able to point out any misreading of fact arrived at by both the courts below. On the other hand, he does not even dispute that the appellants are not in possession of the land given to him by Kapur Singh as per the consent decree dated 27.02.1998 in Civil suit no 295 dated 19.12.1997. After going through the entire file and facts of the present case, I am of the view that the Will dated 17.10.2002 executed by Kapur Singh has duly been proved. This finding of fact has been recorded by taking into account the evidence led by the defendants as per Section 68 of Indian Evidence Act. The appellants had failed to establish that suit property is ancestral Joint Hindu Family Coparcenary property. No substantial question of law arises for adjudication in this appeal. Accordingly, the regular second appeal is dismissed. (RITU BAHRI) December 08, 2011. Judge Seema-II