Regular Second Appeal No. 2236 & 2237 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH (1) Regular Second Appeal No.2236 of 2006 Date of decision:18.08.2009 Surjit Singh s/o Balbir Singh, r/o village Noganwan, Tehsil Rajpura, District Patiala. ..... Appellant. Versus 1. Sarwan Singh s/o Ajmer Singh, s/o Sunder Singh, r/o village Balana, Tehsil and District Ambala. 2. Amar Singh s/o Sawan Singh, Jat Sikh, r/o village Maouli Bedwan, Tehsil Kharar, District Ropar.(Pb). (since deceased) through Lrs: (i)Bhagat Singh (son),(ii) Baljinder Kaur, daughter), (iii) Surinderpal Kaur (daughter), (v) Kulwinder Kaur (daughter) and (v) Jaswinder Kaur (daughter). 3.Paramjit Kaur, 4. Kamlesh Kaur, 5. Sher Kaur, 6. Jaswinder Kaur, 7. Bhupinder Kaur, (respondent Nos.3 to 7 are daughters of Shri Singh Ram), 8. Gulsher Singh s/o Shri Singh Ram, 9. Bhag Singh, 10. Labh Singh, (respondent nos. 9 and 10 are sons of Shri Phaggu Jat Sikh), rs/o respondent nos. 3 to 10 of village Bhullana, Tehsil and District Patiala. 11. Balbir Singh s/o not known r/o Nogawan, near Chhattar Nagar, Tehsil Rajpur, District Patiala. ..... Respondents. (2) Regular Second Appeal No.2237 of 2006 Date of decision:18.08.2009 Surjit Singh s/o Balbir Singh, r/o village Nogwana, Tehsil Rajpura, District Patiala at present R/o village Ballana Tehsil and District Ambala. ..... Appellant. Regular Second Appeal No. 2236 & 2237 of 2006 -2- Versus Sarwan Singh s/o Ajmer Singh, r/o village Ballana, Tehsil and District Ambala. ..... Respondent. 3- Cross Objection No.16-C of 2006 in RSA No. 2236 of 2006 Date of Decision:- 18.08.2009 Surjit Singh s/o Balbir Singh, r/o village Nogwana, Tehsil Rajpura, District Patiala. ..... Appellant. Versus 1. Sarwan Singh s/o Ajmer Singh, r/o village Ballana, Tehsil and District Ambala. 2. Amar Singh s/o Sawan Singh, r/o village Maouli Bedwan, Tehsil Kharar, District Ropar(Pb). 3. Paramjit Kaur, 4. Kamlesh Kaur, 5. Sher Kaur, 6. Jaswinder Kaur, 7. Bhupinder Kaur, (respondent Nos.3 to 7 are daughters of Shri Singh Ram), 8. Gulsher Singh s/o Shri Singh Ram, 9. Bhag Singh, 10. Labh Singh, (respondent nos. 9 and 10 are sons of Shri Phaggu Jat Sikh), rs/o respondent nos. 3 to 10 are village Bhullana, Tehsil and District Patiala. 11. Balbir Singh s/o not known r/o Nogawan, near Chhattar Nagar, Tehsil Rajpur, District Patiala. ..... Respondents 3- Cross Objection No.15-C of 2006 in RSA No. 2237 of 2006 Date of Decision:- 18.08.2009 Surjit Singh s/o Balbir Singh, r/o village Nogwana, Tehsil Rajpura, District Patiala at present R/o village Ballana Tehsil and District Ambala. ..... Appellant. Regular Second Appeal No. 2236 & 2237 of 2006 -3- Versus Sarwan Singh s/o Ajmer Singh, r/o village Ballana, Tehsil and District Ambala. ..... Respondent/Cross-objector. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Ms.Manu Goel, Advocate for the appellant (in both the appeals) and for the respondent in Cross-objections. Mr. J.S. Cooner, Advocate for respondent no.1 (in both the appeals) and for the cross objector in Cross- objection. Service of remaining respondents in RSA No.2236 of 2006 dispensed with. Sham Sunder, J. This judgment shall dispose of the aforesaid two Regular Second Appeals, arising out of the judgments and decrees dated 24.05.2005, rendered by the Court of Civil Judge (Junior Division), Ambala, vide which it dismissed the suits of the plaintiff and the judgments and decrees dated 27.02.2006, rendered by the Additional District Judge (Fast Track) Court,Ambala, vide which he dismissed the appeals, as also the cross-objections, filed by respondent no.1/cross objector. Regular Second Appeal No. 2236 & 2237 of 2006 -4- 2. The facts, in brief, are that, Garja Singh, was the owner in possession of the residential house alongwith courtyard (khola). The house was in existence in some portion of the open space, fully detailed in the head note of the plaint. It was stated that Garja Singh died on 27.04.1989 issueless at village Ballana,Tehsil and District Ambala, leaving behind his widow namely Smt. Surjit Kaur. It was further stated that after the death of Garja, Smt. Surjit Kaur, became the owner in possession of the khola and his all other movable and immovable properties, situated at village Ballana. The plaintiff/ appellant claiming himself to be the nephew (sister- in-law's son) of Surjit Kaur, started residing with her. It was further stated that after the death of Garja Singh, at village Ballana, he(plaintiff) served Smt. Surjit Kaur during her life time and out of love and affection she ( Surjit Kaur ) executed a will dated 28.02.1991, in his favour, bequeathing her movable and immovable property. It was further stated that Smt. Surjit Kaur died on 03.03.1991, and after her death, Surjit Singh, plaintiff, became the owner in possession, of the property, in dispute, on the basis of the will aforesaid. It was further stated that the plaintiff had been using the said house and kholas as and when he visited village Ballana. It was Regular Second Appeal No. 2236 & 2237 of 2006 -5- further stated that, in the month of September, 1996, the defendant namely Sarwan Singh and his family members tried to dispossess the plaintiff from the suit property forcibly and illegally. In this view of the matter, the plaintiff had to file a suit for permanent injunction, against the defendant. It was further stated that during the pendency of the suit and before filing the written statement, the house, in question, fell down and its malba was taken away by the defendant forcibly and illegally. It was further stated that the defendant also forcibly occupied the house (khola) without any right or title. The defendant was many a time, asked to vacate the same, but to no avail. Ultimately, a suit for possession was filed. 3. Sarwan Singh, defendant, put in appearance, and contested the suit, by way of filing written statement. It was pleaded that the plaintiff had no locus standi to file the suit; and that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure as he did not seek the relief of possession in the earlier suit, filed for permanent injunction and on the other hand, withdrew the same on 19.12.1997. It was further pleaded that the suit was not maintainable, in view of the provisions of Order 7 Rule 1 (J) CPC, as another suit titled as Sarwan Singh vs. Surjit Kaur, was pending in the Court. It was further stated that Garja Regular Second Appeal No. 2236 & 2237 of 2006 -6- Singh son of Sunder was the owner, in possession, of the Khola, in question. It was further stated that Garja Singh died issueless at village Ballana. It was further stated that Smt. Surjit Kaur alleged widow of Garja Singh had deserted him just after few years of the marriage, and used to reside with her parents at village Mouli, District Ropar as the relations between her and Garja Singh were not cordial. It was denied that Surjit Singh, defendant, used to serve Surjit Kaur, during her life time. It was further stated that Garja Singh, during his life time, executed a Will dated 15.12.1988 in his (Sarwan Singh) favour. It was further stated that the plaintiff is not related to Smt. Surjit Kaur and she had never executed any Will, in his favour. It was further stated that, if any Will of Surjeet Kaur, was in existence, the same was a forged and fabricated document. It was further stated that the defendant was the owner in possession of the property, in dispute. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- Regular Second Appeal No. 2236 & 2237 of 2006 -7- “1- Whether the plaintiff is entitled to possession as owner of the suit land ?OPP 2- Whether plaintiff has no locus standi to file the present suit ?OPD 3- Whether the suit is barred under Order 2 Rule 2 CPC ?OPD 4- Whether the suit of the plaintiff is bad for non- compliance of Order 7 Rule 1 CPC ?OPD 5- Relief.” 5. The second suit, filed by Sarwan Singh, plaintiff, was for declaration that he was the owner in possession of the land and other property left behind by Garja Singh,(since deceased) as also the residential house, on the basis of will dated 15.12.1988, executed by him (Garja Singh), in his favour. It was stated that the defendants, who had no right, title or interest, tried to dispossess him, from the property, in dispute and alienate the same. The defendants were many a time, asked not to do so, but to no avail. Ultimately, a suit for declaration and permanent injunction was filed. Regular Second Appeal No. 2236 & 2237 of 2006 -8- 6. The defendants, put in appearance, and contested the suit, by way of filing a joint written statement. It was pleaded that the plaintiff had no locus standi to file the suit; that the suit was not maintainable; that the suit was barred by time; that the plaintiff was estopped from filing the suit, by his own act and conduct; that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure; and that the suit was bad for mis-joinder and non-joinder of necessary parties. It was admitted that Garja Singh died on 27.04.1989, at village Ballana, leaving behind Smt. Surjit Kaur as his widow. It was stated that Garja Singh was the owner of movable and immovable properties, at village Ballana, including the land, in dispute. It was further stated that Garja Singh was married to Smt. Surjit Kaur in the year 1969 and the relations between them remained cordial upto the time of his death. It was further stated that Smt. Surjit Kaur, did not live at village Mouli for about 50 years before her death. It was further stated that no will was executed by Garja Singh in favour of the plaintiff, but on the other hand, Smt. Surjit Kaur, who became the owner in possession of the property, in dispute, after the death of Garja Singh, executed a will, dated 28.02.1991, in his (Surjit Singh)favour and he became the Regular Second Appeal No. 2236 & 2237 of 2006 -9- owner in possession of the land, in dispute, as also of the property, in question after her death but was dispossessed therefrom. The remaining averments, contained in the plaint, were denied, being wrong. 7. From the pleadings of the parties, the following issues, were framed by the trial Court :- “1- Whether Garja Singh has executed a valid will dated 15.12.1988 in favour of the plaintiff, if so its effect ?OPP 2- Whether the mutation no. 935 is illegal, wrong, null and void and not binding upon the ownership and possessory rights of the plaintiff ?OPP 3- Whether plaintiff has no locus standi to file the present suit?OPD 4- Whether the suit is not maintainable in the present form ?OPD 5- Whether the suit of the plaintiff is within limitation ?OPD 6- Whether plaintiff is estopped from filing the present suit by his own act and conduct ?OPD 7- Whether the suit is bad for mis-joinder and non- joinder of the necessary parties ?OPD Regular Second Appeal No. 2236 & 2237 of 2006 -10- 8- Relief.” 8. It is pertinent to mention here that an additional issue (7-A) was also framed on 28.09.1998 as under:- “Whether Smt. Surjit Kaur has executed a valid will dated 28.02.1991 in favour of Surjit Singh, defendant no.1, as alleged ?OPD” 9. The following two issues were framed on 25.09.1999:- “1-A) Whether plaintiff was dispossessed from the suit land during pendency of the suit ?OPP 1-B) Whether the plaintiff is entitled to recover possession of suit land from defendant as prayed for ? OPP” 10. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court dismissed the suits, as stated above. 11. Feeling aggrieved, two appeals were preferred by the appellant/plaintiff, which were also dismissed by the Additional District Judge(Fast Track) Court, Ambala, vide his judgments and decrees dated 27.02.2006. Regular Second Appeal No. 2236 & 2237 of 2006 -11- 12. Still feeling dis-satisfied, the aforesaid Regular Second Appeals, by the appellant/plaintiff and the cross- objections have been filed by the cross-objector. 13. I have heard the Counsel for the parties, and have gone through and perused the record of the case, carefully. 14. The following substantial questions of law, arise, in these appeals, for the determination of this Court:- “1. Whether the Courts below, recorded perverse findings, on account of mis-reading and mis- appreciation of evidence that Garja Singh had not executed a valid will dated 15.12.1988, in favour of Sarwan Singh, respondent, and,as such, he had not become the owner thereof? 2- Whether the Courts below, recorded perverse findings, on account of mis-reading and mis- appreciation of evidence that no legal and valid will dated 28.02.1991 was executed by Smt. Surjit Kaur, in favour of Surjit Singh, appellant and, as such, he had not become the owner of the property, in question?” Regular Second Appeal No. 2236 & 2237 of 2006 -12- 15. The Counsel for the appellant in RSA Nos. 2236 and 2237 of 2006 submitted that the Courts below recorded perverse finding on mis-reading and mis- appreciation of evidence that Smt. Surjit Kaur had not executed a legal and valid will dated 28.02.1991 in favour of Surjit Singh. He further submitted that the Courts below were, however right in holding that no legal and valid will dated 15.12.1988, was executed in favour of Sarwan Singh, respondent. 16. On the other hand, the Counsel for the respondents submitted that the Courts below, on due appreciation of evidence, recorded the correct finding that no legal and valid will dated 28.02.1991, was executed by Surjit Kaur, in fvaour of Surjit Singh. He further submitted that the Courts below were wrong in holding that no legal and valid will dated 15.12.1988, was executed by Garja Singh, in favour of Sarwan Singh, respondent, in respect of the property, in dispute. 17. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Regular Second Appeal No. 2236 & 2237 of 2006 -13- Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. Ex.D1 is the will, which was allegedly executed by Garja Singh, in favour of Sarwan Singh. To prove the execution of will, Jai Singh , Scribe, (DW-1) and Mahender Singh, one of the attesting witnesses, (DW-2), were examined. Mere proof of the execution of Will, could not be said to be sufficient to establish the validity and legality thereof. It is for the propounder of the will to dispel all the suspicious circumstances, surrounding the same(will). The suspicious Regular Second Appeal No. 2236 & 2237 of 2006 -14- circumstances surrounding the will,(Ex.D1) dated 15.12.1988, alleged to have been executed by Garja Singh, in favour of Sarwan Singh, as noted by the Courts below, were to the effect that Garja Singh was not of sound disposing mind at the time of the alleged execution of the will; Jai Singh, Scribe, (DW-1) of the same was not a regular scribe and did not hail from the village of Garja Singh (since deceased); that the language of the will clearly revealed that the same was drafted in a technically correct manner, which could not be done by a scribe like Jai Singh, who was not a regular scribe; that on two leaves of the will, there were neither the thumb impressions nor signatures of Garja Singh, nor there were the thumb impressions/signatures of the marginal witnesses and on the second page of the Will, the signatures/thumb impressions of marginal witnesses were appearing in a different ink than the ink used for scribing the same, which revealed that it was scribed at different stages; that according to the plaintiff, the will was handed over by Garja Singh to Kundan Singh, who was a resident of Ambala, where the services of regular deed writers were available and even the facility of registration of the will was also there, but the same was neither got scribed from a regular deed writer, nor was got registered though Regular Second Appeal No. 2236 & 2237 of 2006 -15- Garja Singh, knew the significance of registration as he had earlier executed a sale deed in respect of 4 kanals of land; that Mahender Singh, an attesting witness was working under Sarwan Singh, legatee and, thus, was under his influence; Mohender Singh (DW-2) admitted that there were 10/12 lambardars in the village but their services were not availed of; that there were cuttings in the will (Ex.D-1) by adding word 'Kar'; and that the case set up by Sarwan Singh that he was serving Garja Singh, during his life time, as a result whereof the will (Ex.D-1) was executed in his favour, was belied from the circumstances that he (Garja Singh) obtained loan of Rs.14,000/- and Rs.13,000/- respectively on two occasions from Sarwan Singh, on the basis of pronote and receipt. The Courts below, on the basis of aforesaid suspicious circumstances, which remained un-explained on record, by the propounder, were right in coming to the conclusion, that no legal and valid will dated 15.12.1988 (Ex.P-1) was executed by Garja Singh in favour of Sarwan Singh and, as such, he had not become the owner in possession of the property, in dispute. Since the execution, legality and validity of will, (Ex.P-1) , by Garja Singh, (since deceased) in favour of Sarwan Singh, was not proved, but on Regular Second Appeal No. 2236 & 2237 of 2006 -16- the other hand, on account of the aforesaid suspicious circumstances, which remained unexplained, the same was discarded, Smt. Surjit Kaur, wife of Garja Singh, became the owner in possession of the land, in dispute, which was earlier held by Garja Singh by way of natural succession. 18. The next question that arises, for consideration, is as to whether the Will,(Ex.P-1), alleged to have been executed in favour of Surjit Singh by Smt. Surjit Kaur is legal and valid. Surjit Singh, is the sister-in-law's son of Smt. Surjit Kaur. This will was scribed by Mohan Lal, Deed Writer, (PW-1). On the will, (Ex.P-1) alleged thumb impressions of Smt. Surjit Kaur appeared at two places on the first page. On the second page of the will, two thumb impressions of Smt. Surjit Kaur allegedly appeared. Mohan Lal, Deed Writer,(PW-1), during the course of cross- examination, stated that a single thumb impression or signature of the testator was obtained on the will but on the will, (Ex.D-1), there were two thumb impressions each of the testator on the first as well as on the second page. The first page of the will was typed in double space, in the beginning, but towards the end thereof, the space was reduced to accommodate the full text of the same. This showed that the Regular Second Appeal No. 2236 & 2237 of 2006 -17- alleged thumb impressions of Smt. Surjit Kaur were already, in existence of some blank papers, on which the matter was to be typed and when the typist/scribe came to the conclusion that the matter was more and could not be adjusted, in double space, above the alleged thumb impressions of Smt. Surjit Kaur, he in the first instance, typed the same, in double space, and thereafter reduced the same, so as to adjust the same, just above the thumb impression of Smt. Surjit Kaur. Litigation had already started between Sarwan Singh, plaintiff and Smt. Surjit Kaur, in respect of the alleged execution of the Will. The will was not got registered despite availability of the services of the Sub Registrar. Since the litigation had started between Sarwan Singh and Smt. Surjit Kaur, in respect of the property of Garja Singh,(since deceased), had she wanted to bequeath the property, in favour of Surjit Singh, she would have certainly got the same registered, so as to avoid any complication in future. Smt. Surjit Kaur died after about three days of the alleged execution of the Will,(Ex.P-1) in favour of Surjit Singh. Surjit Singh, during the course of his statement showed total ignorance about village Ballana or about the relations of the husband of Smt. Surjit Kaur. This clearly showed that Surjit Singh was not residing with Smt. Surjit Regular Second Appeal No. 2236 & 2237 of 2006 -18- Kaur, nor was serving her during her life time. Since Garja Singh and Smt. Surjit Kaur died issueless, and their relations were cordial, Surjit Singh and Sarwan Singh, with a view to grab their property, fabricated the wills Ex.P-1 and Ex.D-1 respectively. The first Will allegedly executed by Garja Singh, in favour of Sarwan Singh and the second will allegedly executed by Smt. Surjit Kaur, in favour of Surjit Singh, were surrounded by the aforesaid suspicious circumstances which remained unexplained on record. The Courts below, were, thus, right in holding that the wills Ex.P1 and D1, wills referred to above, were not legal and valid documents and rightly ignored the same and dismissed the suit. 19. The cross-objections filed by the cross- objector Sarwan Singh, on careful perusal and appreciation of evidence, are found to be without substance and liable to be dismissed. 20. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The judgments and Regular Second Appeal No. 2236 & 2237 of 2006 -19- decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellants. 21. For the reasons recorded above, RSA no. 2236 of 2006 and RSA No. 2237 filed by Surjit Singh, as also the cross-objections, filed by Sarwan Singh, Cross-objector, being devoid of merit, must fail and the same stand dismissed with costs. ( Sham Sunder ) 18.08.2009. Judge dinesh