RSA No. 1212 of 2006 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1212 of 2006 Date of decision: December 4 ,2008 Joginder Kaur and another .. Appellants. Versus Bachni and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.S.Mamli, Advocate for the Appellants. None for the respondents .. Rakesh Kumar Garg,J. This is plaintiffs second appeal challenging the judgment and decrees of the courts below whereby the suit of the plaintiffs for declaration and permanent injunction to the effect that the plaintiffs are owners in possession of the land in dispute and for permanent injunction restraining the defendants from dispossessing them from the suit land forcibly and further restraining them from alienating any part of the said land, has been dismissed. As per the averments made in the plaint, one Inder Singh son of Nathu Singh was owner in possession of the suit land to the extent of 2/3rd share. Inder Singh expired about 16 years ago and he was survived by his two sons, namely, Beant Singh and Gurnam Singh. Gurnam Singh had also died. Plaintiff No.1 is wife of Beant Singh and plaintiff No.2 is son of Beant Singh, whereas defendant No.1 is widow of Gurnam Singh and defendant No.2 to 6 are children of Gurnam Singh. It is the case of the plaintiffs that during his life time, Inder Singh executed a registered Will in favour of his sons on 30.7.1965 but he revoked the same vide cancellation deed dated 30.8.1979 and executed another Will in favour of plaintiffs on the same date being pleased with their services. The RSA No. 1212 of 2006 2 testator was displeased with both of his sons because they did not bother to look after him and used to maltreat and misbehave with him. Gurnam Singh (predecessor in interest of defendants) started living in village Balbehra in the house of his in-laws with his family after straining relations. Mutation No.662 of land situated in village Hadana was sanctioned on the basis of the Will in favour of the plaintiffs by Assistant Collector IInd Grade, Dudhan Sadhan on 18.6.1981. Gurnam Singh preferred an appeal against this order but the same was dismissed by the Collector on 20.9.1982 against which he failed to avail further remedy. The Assistant Collector IInd Grade, Dudhan Sadhan sanctioned mutation No.247 regarding the suit land on 19.9.1996 in an illegal manner, in the absence of plaintiffs, without giving any notice and as such the same is liable to be set aside. The plaintiffs preferred revision against the order passed by Revenue Officer, but the same was dismissed, vide orders dated 30.10.1998 and 19.8.1999, passed by Collector and Commissioner respectively. It is submitted that the order passed by the Revenue Officers regarding the mutation No.247 do not have any effect on the rights of the plaintiffs, qua the suit land because mutation does not confer any title because the plaintiffs have become exclusive owners of the suit land and are in actual possession thereof, continuously after the death of testator Inder Singh. Now the defendants have started threatening the plaintiffs to alienate the suit land, although they have no right, title or interest therein. They have also failed to acknowledge, the plaintiffs to be owner of the suit land, hence the suit. Upon notice, defendants filed written statement , submitting that suit land, in the hands of Inder Singh, was ancestral Joint Hindu Family Coparcenary property and he was co-owner in the same to the extent of 1/3rd share. It is submitted that Inder Singh executed registered Will dated 30.7.1965 in favour of his sons Gurnam Singh and Beant Singh in equal shares, but it is denied that the said Will was cancelled by him, vide cancellation deed dated 30.8.1979. It is also denied that Inder Singh, executed registered Will dated 30.8.1979 in favour of RSA No. 1212 of 2006 3 the plaintiffs. It is submitted that Cancellation deed and Will dated 30.8.1979 do not bear thumb impressions of testator, who has no right to execute the Will, relating to joint Hindu Family Coparcenary Property. It is submitted that defendant s No.1 to 6 used to look after Inder Singh, during his life time. It is denied that Gurnam Singh got separated from his father and started living with his family in village Balbehra in the house of his in laws. It is denied that Gurnam Singh had strained relations with his father. It is submitted that after death of Gurnam, Singh, defendant Nos.1 to 6, performed last rites and bhog ceremony of Inder Singh and not the plaintiffs. It is denied that deceased Gurnam Singh used to maltreat and misbehave with his deceased father. It is contended that Inder Singh owned and possessed the land in village Hadana and village Goharpur and he was karta of joint Hindu Family whereas his son Gurnam Singh and Beant Singh were coparceners in the property owned by the family to the extent of 1/3rd share each. It is submitted that Gurnam Singh and Inder Singh, have become owner to the extent of 1/3rd share in the estate of their father situated in both the villages, named above, but the mutation No.662 has been got sanctioned, by the plaintiffs in their favour regarding land situated in village Hadana, without service of notice upon the answering defendants, about which they came to know on 16.9.1999, after appearance in the court. It is submitted that even Gurnam Singh, had no knowledge about sanctioning of the said mutation, as such, question of filing revision by him, does not arise at all. It is contended that mutation No.247 regarding the suit land has been rightly sanctioned, on the basis of natural succession by the revenue officers, but it is denied that it has been sanctioned without serving notice, upon the plaintiffs. It is also submitted that no notice was required to be given upon the plaintiffs during the life time, of Bant Singh defendant No.7, husband of plaintiffs No.1 and father of plaintiff No.2. Rests of the averments, made in the plaint, have been denied and prayer has been made for dismissal of the suit with costs. On the pleadings of the parties, the trial Court framed the following issues:- RSA No. 1212 of 2006 4 1. Whether the plaintiffs are entitled to the relief of declaration to the effect that are the owners and in possession of the land in dispute as prayed for? OPP 2. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for ?OPP 3. Whether the suit property is the ancestral Hindu undivided family property ?OPD 4. Whether Inder Singh had no right, title to execute Will regarding the land in dispute ?OPD 5. Whether the defendants No.1 to 6 used to look after deceased Inder Singh ?OPD 6. Whether the plaintiffs have no cause of action to file the present suit` ?OPD 7. Relief. Issue No.1 and 2 were decided against the plaintiffs, whereas issue Nos.3 and 4 were decided in favour of the plaintiffs and in view of the findings on issue Nos.1 and 2, the suit of the plaintiff was dismissed by the trial Court. Aggrieved by the said judgment and decree, both the parties preferred two separate appeals. The Additional District Judge, Patiala vide impugned judgment and decree dated 2.12.2005 dismissed both these appeal. Still not satisfied, the plaintiffs have filed the instant appeal challenging the impugned judgment and decrees of the courts below. Learned counsel for the appellants has vehemently argued that the courts below have wrongly ignored the Will Ex.P2 which is in favour of the appellants vide which deceased Inder Singh son of Nathu Singh bequeathed his entire property in favour of the appellants and thus the judgment and decrees of the courts below are liable to be reversed in favour of the appellants. Elaborating his argument further, learned counsel has argued that both the courts below on the one hand had admitted the execution of the Will by Inder Singh in favour of the appellants but has not taken into consideration the same in toto which is RSA No. 1212 of 2006 5 against the law. It is well settled proposition of law that the document which is registered one is to be read and taken into consideration as a whole and its specific portion cannot be read or interpreted. The contention of the appellant is that in the Will, it has been clearly mentioned that the testator wanted to bequeath his total land situated in village Goharpur and village Hadana in favour of the appellants and the courts below have wrongly interpreted the same only for the land situated in village Hadana. Learned counsel has further argued that the courts below have erred at law while dismissing the application filed by the appellants for production of additional evidence to prove the order dated 20.9.2004 passed by the Assistant Collector IInd Grade, Dudhan Sadhan, whereby he has corrected Khasra Girdawari in the names of the appellants which was still entered in the name of Inder Singh after inspecting the spot. According to the appellants, this order dated 20.9.2004 is very relevant to arrive at a proper decision of the case as it will definitely prove the appellants to be in possession of the suit land. On the basis of the above said arguments learned counsel for the appellants has raised the following substantial questions of law alleged to be arising in this appeal:- i) Whether both the courts below have misread and misinterpreted the documentary and other evidence produced by the appellants and thus judgments and decrees passed by the courts below are perverse? ii) Whether the lower Appellate Court was right in dismissing the application filed by the appellants for production of additional evidence? iii) Whether both the courts below were right while rejecting the evidence produced by the appellants regarding their possession over the suit land? I have heard learned counsel for the appellant. However, I find no merit in the contentions raised by him. Undisputedly, Inder Singh deceased had RSA No. 1212 of 2006 6 land in two villages i.e., village Hadana and village Goharpur. In the present case, the land of village Goharpur is in dispute and the land situated in village Hadana is not in dispute. It is not disputed that Inder Singh had two sons namely Beant Singh and Gurnam Singh. Gurnam, Singh is also dead and defendants Nos.1 to 6 are his legal heirs. Plaintiffs are the wife and son of Beant Singh and have filed the present suit on the basis of Will dated 30.8.1979 in their favour. The execution of previous Will dated 30.7.1965 by Inder Singh in favour of his two sons Gurnam Singh and Beant Singh is not disputed. The dispute in the present case is regarding cancellation deed and execution of fresh Will in favour of the plaintiffs dated 30.8.1979. The cancellation deed, which is also exhibited as Ex. P2 is a registered document, which shows that on 30.8.1979, Inder Singh cancelled his Will dated 30.7.1965 executed in favour of his sons Gurnam Singh and Beant Singh on the ground that sons are misbehaving with him and are not serving him. Therefore, he cancelled the said Will. The cancellation deed was thumb marked by Inder Singh and attested by Jangir Singh son of Arjan Singh of village Karanpur and Mehar Singh, Numberdar of village Hadana. It was scribed by Gurbax Singh, petition writer. The Will which is also exhibited as P2 by the trial Court is also of the same date i.e., 30.8.1979. It is also scribed by same petition writer and attested by the same witnesses. Through this Will, Inder Singh, aged 75 years, has stated that he has property at village Hadana, Tehsil and District Patiala and he cannot look after the said property, therefore, he wants to make arrangement regarding the said property after his death to avoid litigation. Therefore, he in his full senses bequeathed away the said property and executed the Will in favour of Joginder Kaur wife of Beant Singh and his grand son Malkiat Singh son of Beant Singh. He has further stated that the said persons will be the owners, in equal shares, of his entire property (Kulham Jaidad) and no body else will have any concern with the above noted (Uprokat) property. Both the courts below after appreciation of evidence on record RSA No. 1212 of 2006 7 have recorded a finding of fact that the aforesaid Will dated 30.8.1979 is only with regard to the property of village Hadana and not regarding property in dispute, i.e., of village Goharpur, District Patiala, whereas the argument of the counsel for the appellants is that the word ( Kulham, meaning Total ) in Gurmukhi script written in the Will, shows that it is with regard to the entire property of Inder Singh situated in village Hadana as well as village Goharpur. I have perused the disputed Will with the help of learned counsel for the appellants and I fully agree with the view taken by the courts below that the Will is only with regard to the property of Inder Singh situated in village Hadana. It is specifically mentioned in the Will that the Will is executed regarding the property of village Hadana and at two places word “Uprokat”(above noted) has been used in the Will. Therefore, word ‘Kulham Jaidad’ (i.e., the entire property) is to be read in context with the entire wording of the Will which when read as a whole means that it pertains to entire property of village Hadana. Even after the word ‘Kulham’ in the Will, Ex.P2, the testator has again used word ‘Uprokat’ which means’ above noted’. It refers to the property above noted of village Hadana only. The second contention of the learned counsel for the appellant is also without any substance. The courts below on appreciation of evidence have recorded a finding of fact that plaintiffs are not proved to be owner in exclusive possession of the suit land, therefore, they are not entitled to the injunction as prayed for. The question whether the appellants are in possession of the suit property or not is a question of fact and the same has been answered against the appellants by the courts below on appreciation of evidence. It is well settled proposition of law that a co-sharer is deemed to be in possession of the joint land on behalf of all the co-sharers even those who are out of possession. As such, even if it is to be accepted on the strength of oral evidence produced by the plaintiff that they are in actual possession of some part of the suit land even then they are deemed to be in possession thereof as trustee for all the co-sharers. As such, plea of the plaintiffs that they are owners RSA No. 1212 of 2006 8 in possession of the suit land cannot be accepted by the court. It is also settled proposition of law that every co-sharer has interest in every inch of the land till the same is partitioned by metes and bounds. As such defendants having become co-sharers in the suit land to the extent of ½ share have every right to use the same in husband like manner not inconsistent with the similar right of other co-sharers. Even otherwise entries made by the revenue officer in khasra girdawari during pendency of civil suit are of no consequence. As such, plaintiffs cannot be said to be in possession of suit land, on the basis of same. Since the plaintiffs are not proved to be owner in exclusive possession of the suit land, therefore, they are not entitled to declaration nor injunction prayed for. The correction of khasra girdawari made by the revenue authorities vide order dated 20.9.2004 sought to be produced by way of additional evidence before the lower Appellate Court in the names of the appellants will not improve their case in any manner as they are recorded as co-sharers of the property in dispute along with the defendants, therefore, at the most they may be in possession of the land in dispute on behalf of the co-sharers. For the reasons recorded above, I find no merit in this appeal and the same is dismissed. December 4 , 2008 (RAKESH KUMAR GARG) nk JUDGE