R.S.A. No.3610 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3610 of 2008 Date of Decision:26.07.2011 Bhajan Singh and another ......Appellants Versus Sohan Singh .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Sameer Sachdeva, Advocate, for the appellants. Mr.S.P.Soi, Advocate, for the respondent. **** M EHINDER S INGH S ULLAR , J.(oral) The compendium of the facts, relevant for disposal of the present appeal and emanating from the record is, that Sohan Singh son of Kartar Singh- respondent-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration to the effect that mutation No.1559, pertaining to the land in dispute, is null & void and not binding on his rights, with a consequential relief of mandatory injunction, directing the revenue officers to sanction the mutation on the basis of civil court decree dated 19.12.1995 and for permanent injunction, restraining his brothers Bhajan Singh and Gurbachan Singh-appellant-defendants (for brevity “the defendants”), from alienating the suit land, in any manner. 2. The case set up by the plaintiff, in brief, insofar as relevant was, that Kartar Singh, father of the parties, was the owner and in possession of the land in dispute. He partitioned and gave the land in dispute to them in equal shares to the extent of 25 kanals 2 marla each, in pursuance of judgment(Ex.P1) and decree (Ex.P2) dated 19.12.1995 of the civil court. The plaintiff claimed that the defendants have illegally got sanctioned the mutation No.1559 in respect of the R.S.A. No.3610 of 2008 2 land in dispute on the basis of a false and fabricated Will of their father Kartar Singh, during the pendency of the appeal against the judgment(Ex.P1) and decree (Ex.P2). The appeal was ultimately dismissed by the court of Additional District Judge, Jalandhar. 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that he along with the defendants, sons of Kartar Singh, became the owners in equal shares in the land in dispute, in pursuance of the civil court judgment(Ex.P1) and decree(Ex.P2). But the defendants have illegally got sanctioned the impugned mutation No.1559 in their favour, without any legal right, on the basis of some false and fabricated Will of their father Kartar Singh. The Will/impugned mutation was stated to be illegal, null & void and inoperative on his rights. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of declaration, with a consequential relief of mandatory/permanent injunction, against the defendants, in the manner depicted hereinabove. 4. The defendants contested the suit and filed the written statement, inter alia, pleading certain preliminary objections of, maintainability of the suit, jurisdiction of the court, limitation, cause of action and locus standi of the plaintiff. However, it was admitted that they(plaintiff and the defendants) have been declared to be the owners in possession of the land, measuring 25 kanals 2 marla each, out of the suit property, by way of judgment(Ex.P1) and decree(Ex.P2) dated 19.12.1995 of the civil court. According to the defendants, the said decree is not binding on them, as the same was not registered. Their father Kartar Singh was stated to have executed the Will dated 19.07.1995 and mutation No.1559 was rightly entered in pursuance of the Will, which was claimed to be binding on the plaintiff. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. R.S.A. No.3610 of 2008 3 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 6. The parties to the lis, in order to substantiate their respective pleas, brought on record oral as well as the documentary evidence. 7. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, decreed the suit of the plaintiff and declared mutation No.1559 as null and void, through the medium of impugned judgment and decree dated 29.04.2006. 8. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed as well by the first Appellate Court, by means of impugned judgment and decree dated 28.07.2008. 9. The appellant-defendants still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 10. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the arguments of the learned counsel for the appellant- defendants that the civil court decree dated 19.12.1995 was unregistered and is not binding on their rights and since, their father Kartar Singh executed a Will dated 19.07.1995 in their favour, so, the Courts below committed a legal mistake in decreeing the suit of the plaintiff, are not only devoid of merit but misplaced as well. 12. As is evident from the record that plaintiff-Sohan Singh and defendants-Bhajan Singh and Gurbachan Singh, are the real brothers and sons of Kartar Singh. During his lifetime, Kartar Singh transferred his entire land in equal R.S.A. No.3610 of 2008 4 shares in favour of their sons(parties to the suit), vide civil court judgment(Ex.P1) and decree(Ex.P2). That means, the plaintiff and the defendants became absolute owner and in possession of the suit land in equal shares, by virtue of impugned judgment(Ex.P1) and decree(Ex.P2). As the judgment(Ex.P1) and decree(Ex.P2) were affirmed by the first Appellate Court, by means of impugned judgment and decree dated 07.10.1997(Ex.P3), so, the same had attained the finality. It is not a matter of dispute that Kartar Singh had died on 17.08.1997 and the defendants have claimed that Kartar Singh executed the Will in their favour on 19.07.1995. The Will would naturally come into operation only on 17.08.1997, in the wake of death of Kartar Singh. 13. Meaning thereby, once, the land in dispute stands transferred by Kartar Singh to his three sons in equal shares, in pursuance of judgments and decrees(Exhibits P1 to P3), then he was not the owner of any land on 17.08.1997, which could be mutated in the names of the defendants on the basis of alleged Will (Ex.D1). Therefore, to me, the trial Court has rightly negatived the claim of the defendants in this relevant connection. 14. Not only that, the decision of the trial Court was upheld by the first Appellate Court, vide impugned judgment and decree dated 28.07.2008, which in substance is, as under:- “The all important question to be answered in these proceedings as to whether Gurbachan Singh and Bhajan Singh can avoid rigors of judgment and decree dated 19.12.1995 in view of the fact that they were themselves the plaintiffs of the suit wherein those judgment and decree was passed? It is apparent that neither Sohan Singh, the plaintiff/respondent herein before us nor Bhajan Singh and Gurbachan Singh have been able to accept execution of two sale deeds by Kartar Singh in favour of Jaswinder Kaur, daughter in law and grand son Karnail Singh. Bhajan Singh and Gurbachan Singh and so also Sohan Singh wanted to be declared owners of entire of the land with Kartar Singh to the extent of 29 kanal 15 marla and when it was revealed that Kartar Singh had already sold some of those lands to Jaswinder Kaur and Karnail Singh, the court of Shri Ranjit Kumr R.S.A. No.3610 of 2008 5 Jain, learned Civil Judge (Junior Division) Jalandhar reckoned the fact of execution of the sale deeds by Kartar Singh and declared his sons to be owners of the lands left with Karnail Singh. Gurbachan Singh and Bhajan Singh went in appeal against the judgment and decree dated 19.12.1995 but only to withdraw it on 7.12.1997. Sohan Singh has also challenged sale deed executed by Kartar Singh only on 9.11.1990, but only to meet with dismissal of the suit vide Ex.D2 and Ex.D3. Once having held judgment and decree Ex.P1 and Ex.P2 to be good, legal and binding on the parties, we now move on deciding the fate of execution of the Will, Ex.D1. It goes without saying that the Will comes into operation only after the death of testator and whatever the testator may have desired in is Will it is only those properties which are held by the testator at the time of his death which would be governed by the Will. The moment Kartar Singh is found to have washed of his hands from the suit property vide judgment and decree dated 19.12.1995 it would follow that subject matter of the present suit was no longer his property on the day of his departure from this world on 17.8.1997 and as such suit properties could not have been bequeathed declared by Kartar Singh vide Ex.D1. Any further discussion on the genuineness of the Will, Ex.D1 is therefore rendered redundant.” 15. No other meaningful argument has been raised by the learned counsel for the appellant-defendants, to assail the findings of the Courts below. All the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on their behalf, have already been duly considered and dealt with by the Courts below, in this relevant direction. 16. Moreover, having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the above indicated findings of fact. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this respect. 17. Meaning thereby, the entire matter revolves around the re- R.S.A. No.3610 of 2008 6 appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, much-less substantial, is involved in the second appeal, in view of the law laid down by Hon'ble the Apex Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments and decrees of the Courts below, as contemplated under Section 100 CPC, in the obtaining circumstances of the instant case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 19. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 26, 2011 (MEHINDER SINGH SULLAR) seema JUDGE