R.S.A. No.1299 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1299 of 2007 Date of Decision:04.08.2011 Makhan Singh ......Appellant Versus Gurmail Kaur .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.N.S.Dandiwal, Advocate, for the appellant. Mr.B.S.Bhalla, Advocate, for the respondent. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the relevant facts, which need a necessary mention for the limited purpose of deciding the present appeal and emanating from the record, are that Makhan Singh(since deceased)-appellant-plaintiff(hereinafter to be referred as “the plaintiff”), claiming himself to be the son of Sarwan Singh son of Nikka Singh, filed the suit for a decree of declaration to the effect that he is owner and in possession of the house in question, and the Will dated 30.10.1996 executed by Sarwan Singh in favour of his daughter Gurmail Kaur, wife of Jagir Singh- respondent-defendant(for brevity “the defendant”) and mutation sanctioned thereof, are illegal, null and void, with a consequential relief of permanent injunction, restraining the defendant from alienating the suit property, in any manner, inter alia, pleading that Sarwan Singh son of Nikka Singh was the owner and in possession of the house in dispute. He is the son, while the defendant is the real daughter of Sarwan Singh, who died on 01.12.1998. The dwelling house in dispute was stated to be joint Hindu family coparcenary property of Sarwan Singh. R.S.A. No.1299 of 2007 2 The plaintiff claimed that the defendant has fabricated a forged Will dated 30.10.1996 and got mutation sanctioned in pursuance thereof, without any legal right. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that the house in dispute is a joint Hindu family coparcenary property of Sarwan Singh and he is entitled to it by birth. But the defendant has fabricated a forged Will and illegally got entered the mutation on the basis of Will, which were stated to be illegal, null and void. The plaintiff asked the defendant to admit his claim, but in vain, which necessitated him (plaintiff) to file the suit. On the basis of aforesaid pleading, the plaintiff filed the suit for a decree of declaration and permanent injunction against the defendant, in the manner depicted hereinabove. 3. The defendant contested the suit and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. It was totally denied that the plaintiff is the son of deceased Sarwan Singh. However, it was admitted that Sarwan Singh was the owner and in possession of the house in question. He executed a valid Will in her favour out of his free consent. In the wake of death of Sarwan Singh on 01.12.1998, mutation was rightly sanctioned in her favour. Thus, she is owner and in possession of the same. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. 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 necessary issues for proper adjudication of the controversy and the case was slated for evidence of the plaintiff. 5. The parties to the lis in order to substantiate their respective stands, R.S.A. No.1299 of 2007 3 brought on record oral as well as the documentary evidence. 6. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, has held that the plaintiff has failed to prove that he is the real son of Sarwan Singh, deceased and the execution of the Will in favour of the defendant was duly proved. Consequently, the suit filed by the plaintiff was dismissed by the trial Court by way of impugned judgment and decree dated 19.01.2006. 7. Aggrieved by the impugned decision of the trial Court, the plaintiff filed the appeal, which was dismissed as well with costs by the first Appellate Court by means of impugned judgment and decree dated 29.11.2006. 8. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. It may be added here that during the pendency of the appeal, the plaintiff had expired and his LRs were impleaded in his place. 9. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this respect. 10. Ex facie, the argument of the learned counsel that the plaintiff is the son of Sarwan Singh, deceased, is entitled to inherit the ancestral dwelling house in dispute and since, the Will executed by Sarwan Singh in favour of his daughter Gurmail Kaur-defendant, resultant mutation are wrong and illegal, so, the Courts below committed a legal mistake in dismissing his suit, sans merit. 11. As is evident from the record that, the plaintiff claiming himself to be the son of Sarwan Singh, deceased, filed the present suit. It was for him (plaintiff) to prove by adducing cogent evidence that he is son of Sarwan Singh and the house in question is joint Hindu family coparcenary property, but he has miserably failed in this regard. The plaintiff did not produce any birth entry, education certificate or any other document to prove that he is son of Sarwan R.S.A. No.1299 of 2007 4 Singh. It is not a matter of dispute that Phino Devi, widow of Sarwan Singh and mother of Gurmail Kaur-defendant, is alive. The plaintiff has neither examined her, nor produced any relation witness of the family to prove that he was born out of the wedlock of Sarwan Singh and Phinno Devi. That means, the plaintiff has withheld the best possible evidence, which could prove his relationship with Sarwan Singh, deceased. In that eventuality, the legal adverse inference is inevitable against him in this context. 12. Not only that, there is not an iota of evidence on record in the shape of pedigree table, or the revenue record to connect the relationship of the plaintiff with Sarwan Singh, or to prove that the house in dispute in the hands of Sarwan Singh was joint Hindu family coparcenary property. On the other hand, the defendant, who is daughter of Sarwan Singh, has duly proved the execution of the Will in her favour. Even the pedigree table brought on record would reveal that, Phino Devi is described as a widow, while defendant-Gurmail Kaur is mentioned as daughter/class-I heir of deceased Sarwan Singh. 13. Meaning thereby, the Courts below having scanned the admissible evidence in relation to the pleadings of the parties, have recorded a finding of facts that the plaintiff has miserably failed to prove that he is the son of Sarwan Singh. On the contrary, the execution of the Will executed by Sarwan Singh in favour of his daughter Gurmail Kaur-defendant, is duly proved and have rightly negatived the claim of the plaintiff in the impugned judgments and decrees. Such judgments, containing the valid reasons, 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 appellant, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this relevant context. 14. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail the findings of the Courts below. All R.S.A. No.1299 of 2007 5 the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the Courts below, in this relevant direction. 15. Neither any question of law, much less substantial, is involved in this regular second appeal, as contemplated under Section 100 CPC, nor any other point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. Therefore, the impugned judgments and decrees of the Courts below deserve to be and are hereby maintained in the obtaining circumstances of the case. 16. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. August 04, 2011 (MEHINDER SINGH SULLAR) seema JUDGE