0 434 1 14 1 14e CV RSAN012310f1995 1 k 1CRSiCR IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSANo1231of1995 Dato cf declsion25082010 BhupSingh Appellant 0 t Versus Dalipand others espondents D I CORAMl HONBLE MR JUSTICE RAKESH KUMAR JAIN Z 2 Present Mr SanjivGuptaAdvocate Lr for the appellant Mr HSGill Advocate Senior Advocate with Mr ManoiNagrathAdvocate tor respcndeiltNo1 021 7t0r0e 10 me RAKESH KUMAR 441P1 Z Thls appealis Ied at tile tnsiance of defendant No l agaiIlSt tl the judgmeiltand decree 01both ihe Courts below by which suil filed bv 1 the plaintiffhas beerl decreed In brief Dalip olaintiHlfiieoda sIit for permanerlt claiininghimself to be owner in possessionof hoose in disputehaving been purchasedon 2910 984 for a consideration of Rs24000oln Sat Narain Jai Narain and Rain Narain sorls of Diwarl Singhaod has allegedthat BhupSingh 4efendant Nol l is claimingownershipof tiIe house in disputce ana IS berlt upon to dispossessthe Iolaintiff on the oaslS uf an allegedmortgagedeed itl his favour execoreo by Ram Chander SOO . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 435 1 1 11 RSA No231 of 1995 2 9kRokk of Harphulthoughthe said Ram Chander has no Iegalright title or interest to mortgagethe propertyin dispute In the aiternative it was prayedthat if the plaintiffis dispossesseduringthe pendency of suit he may be put back in possession Duringthe pendencyof suit Ram Chander was arrayedas defendant No BhupSingh lefendant No l l 1L while contestingthe suit claimed his possessionover the suit property Oll 0 the basis of motlgagedeed dated 21 5 984 agalnsta consideration of 0 Rs l 60001 paid to Ram Chander Ram Chander iefendant No2I D claimed ownershipover the house in disputeon the basis of 3 Will dated 106 1958 allegedto have been executed by Shiv Lal who happenedto be his fathers brother ln repiicationthe plaintiffhas ailegedthat the Z 2 propertyin disputewas owned byone Mam Kauri Man Kauri widow of L Luxmi Narain who giftedit to Sat Narain Jai Narain and Ram Narain sons of Diwan Singhon 0441963 On the basis of the said gift Sat Narain c8 etc became owner in possessionof the propey in disputeand sold it on VAW 29 01984 to the piaintiffagainstconsideration It was allegedthat on Z 0741985 defendant Nol byusingforce had dispossessedthe plaintiff Om from the house in dispute As there was variance in the pleadingsof the partiesissues were struck bythe Iearned Trial Court and after obtaining l evidence from both the sides suit of the plaintiffwas derreecl The Iearned First appellateCourt has giventhefollowing enealogyin order to giverelationship of the parties Siria Diwan Chinrall Ga nga Dutt died issuelessl Harphool Ram Chander Sat Narain Jai Narain Ram Narain Shiv LaI Luxminarain Defendant No2I Man Kauri e Mam Kauri ividow . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 436 41r RSA No1231 of 1995 3 irRirkRN Basicallyin this case both plaintiffand defendant No l are to the aforesaid family Plaintiff is the vendee of the house in disputefrom children of Diwan Singhwho claims to have become owner of the said house on the basis of a giftdeed byMam Kauri Man Kauri whereas defendant No l claims his possessionon the basis of mortgage m deed allegedto have been executed by Ram Chander lefendant No2I 0 who allegedto have got the propertyin disputefrom Shiv Lal son of 0 GangaDuttbyway of W After appreciation cf evidence IearnedCouns t below have found that Ram Chander has miserablyfailed to prove the I Will in his favouIfhe First AppeIIate Court has givena cateooricfinding tn this regardin para No of thejudgmentwhich reads as under Z e Before me the Iearned counsel for the 2 appellanthas taken up two pointsone after the other as alternative to each t17er Firstiy the I Ieamed trial coutt con7mittedan error in holding a5 that the will prepoundedby the defendants WaS not provecl lt has been arguedthat the iviil was Z fullyprovedto be a valid will executed by Shiv Lal in favour of Ram Chander and as such Ram 81 Chander should have been held to be the owner and Bhup Singh defendant No should have 1 been held to be in possessionas Inongagee 1 am unable to persuademyself to agree with the Iearned counsel for the appellanton this point The reasons are as underl 1 BhupSinghhad filed a written statement at a time when Ram Chander was not a pany to the suit BhupSinghdid not take up the plea that any will had been executed by Shiv Lal in favour of Ram Chander Bhup SinghnOW cannot say that he did not know . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 437 41 01 RSA No1231 of 1995 e4 1rkMRRR 1 thisfact The reason is that he himself has claimedto be an attestingwitness of this will Had there been any such will in existenceat the time when BhupSinghfiled the writtenstatement he would have made a reference to this will in his written statement 2 BhupSinghhas admitted that he had the 0 of the will at the time when he filedthe writtenstatement Not onlythis he has allegedthat at the time of the the will had been handed over I by Ram Chander to Bhup Singh Still furtherhe has stated that he had told about Z thiswill to his counsel at the timeof drafting 1 2 of the written statement This sort of statementhe is makingonlyon the basis of I with a view to assert his point C8 OtheIwise had these facts been true the counsel for the defendant Bhup Singh wouldhave made a reference of this will in wa Z the writtenstatement 3 A perusalof the will would show that the ink 11 used for writingthe contents is diHerent than the ink used for gettingthe thun7b impression of BhupSinghand Mir Singh Thewill was scribed at a house in Delhi and not at the seat of some petitionwriter It 1 cannotbe said that because of that reason the thumbimpressionswere affixed with an 1 ink pad Once theyare to be affixed in the penink normallyit would have been affixed withthe ink of the same pen with which the bodywas written 4 A perusalof the will would show that this is . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document r 438 6 RSA No1231of1995 5 kkkR not recordedspecifically as to whict thumb is of which attestingwitness Thisalso casts a doubt on the validityof this will 5 A perusal of the contents of the will would show that it was drafted by some mature and well read expert Shiv Lal the alleged 1 tX executantof the will had read onlyupto 4 0 or 5 primaryclass This is the case of the t defendantsthat the will was writtenby Shiv Lal in his own hand It could not be D expected from this Iittleread villagerto draft I such a nice will 6 The pointsstated above have been well Z discussed by the Ieamed trial Coult In 2 addition there is another materia poInt tX Shiv Lal had not thoughtall of sudden to I execute a will He had allegedly 08 preplanned itle was in Delhi at the house of somebodyin Karol Bhag when he executedthe will The witnesses were all W Z from villageGirdharpurof Haryana The attestingwitnesses were called at that house In the circumstances had this will been genuineit would have been got d scribed from some petitionwriter and would have been gotregistered 7 Also there are as many as four witnesses of 11 this will ExDW51A Normallytwo attesting witnesses are required Why then So 4 mm many2 No abnormacyhas been 9hown So the genuineness of the will is doubtful 10 In the Iightof above discussion it can well be found that the defendants who are proponders of the will had failed to prove the execution and . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 439 1 V RSA No 1231 of 1995 6 kkk the validity of the will Hence on the basis of the willRam Chander defendant N02 cannot be held to have become the owner of this house and BhupSinghcannot claim to be a under Ram Chander The second pointraised before the Iearned First Appellate 1 Court was that propertyin disputewas ancestral but it was brushed aside 0 on the groundthat pleaof ancestral nature of the suit propertywas not t takenin the written statement therefore it cannot be taken for the first I time in appealas it is a pure questionof fact regardingwhich no evidence has been Ied In the presentappealiearned counsel for the appellanthas Z raised the question that suit for permanentinjunctionwas not t maintainableas plaintiffwas not in possessionof the propertvin dispute I The plaintiffcannot be held to be the owner of the suit propertyon the o basisof sale deed dated 291 984 as he was requiredto prove the title of his predecessorand the decree for possessioncould not be passedin 7 Z favour of the plaintiffagainstdefendant No 1 who was mortgageein possessionwithoutredemption In this regard Iearned counsel for responder l No l has 1 submittedthat now this questionhas been raised for the first time before this Court as this questionwas never raised before the Couns below 1 rather the Iearned First AppellateCoun had speciOcallyrecorded in para No of his judgmentthat counsel for the appellanthas taken two points one after the other as alternativeto each other and both the pointswere O decided bythe Courts below in which the pointswhich are now soughtto be agitatedWere not included In this regard he has relied upon two . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 440 1 r a RSA No1231 of 1995 7 1117111r decisions of the SupremeCourt in the cases of Central Bank of India Vs Vrailal Kapurchand Gandhi and another AlR 2003 Supreme Court 3028 and State of Maharashtra Vs Ramdas Shrin4Ias Navak and another AlR 1982 SupremeCourt 12411 to contend thatthe statements of fact as to what transpiredat the hearingrecorded in the P judgmentof the Court are conclusive of the facts so stated and no one 0 can contradict such statements by affidavit or other evidence If a pany thinks that the happeningsin Court have been wronglyrecorded in a I D judgmentit is incumbent upon the partywhile the matter is still fresh in I the minds of the Judgesto call the attentionof the very Judgeswho have Z made the recorcl That is the onlyway to have the record corrected and if no such stepis taken the mattermust necessarilyend there It is not opento a partyto contend before the AppellateCourt to the contraryas 1 the AppellateCourt would not Iaunch an enquiryas to what had transpired a5 before the Courts below The publicpolicyand judicialdecorum do not v permit The matters of judicialrecord in that sense are unquestionable Z Further he has reiied upon a decision of the SupremeCourt in the case of tl Kshitish Chandra Purkait Vs Santosh Kumar Purkait and others AlR 1997 SupremeCourt 2517 to contend that a new pleabefore the High 1 i Court is not permissible even on the groundthat it was Iegaipieauntil the HighCourt is satisfied that the case involves substantialquestionof Iaw It is subtnitted that no substantial questionof Iaw has been raised by Iearned counsel for the appellantagainstconcurrent findingsof fact recorded by the Cou rts below to the effect that possessory righton the basis of a mortgagedeed havingbeen clainled by defendant Nol from defendant No2 is of no consequence because defendant No 2 is not . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 441 11 RSA No231 of 1995 8 RRRk5k provedto have title over the propertyin disputerather the sale deed in favourof the plaintiffand the giftdeed on the basis of which the vendors of the plaintiffhave sotd the propertyin disputeto him has not been provedto be illegal In view of the aforesaid discussion I do not find any merit in 1 1 the presentappealnor do i find any questionof Iaw much4ess substantial 0 involved in this appeal and as such the presentappealIS hereby dismissed however without any order as to costs 0 c4 4 1 4 August252010 RAKESH KUMAR JAINI Z vinod JUDGE 5 r 7 Lr 4 o2l 7 Z Ilw Il 1J 9 . Rashmi 2012.05.30 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document