Regular Second Appeal No. 1894 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1894 of 2011 Date of decision : May 02, 2011 Gurbax Singh and others ....Appellants versus Baljit Singh alias Balkar Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Narinder Lucky, Advocate, for the appellants Mr. BR Mahajan, Advocate, for respondent nos. 1 to 14 – caveators. L.N. Mittal, J. (Oral) Defendants no. 2, four of the six legal representatives of defendant no. 3 and defendant no. 4 have filed the instant second appeal. Suit was filed by Mohinder Kaur alias Mohindro plaintiff no. 1 since deceased and represented by respondents no. 1 to 12, Jagir Kaur alias Jagiro plaintiff no. 2/respondent no. 13 and Veero plaintiff no. 3/respondent no. 14 against Shangara Singh defendant no. 1 since deceased and his three sons Gurbax Singh, Jaswinder Singh since deceased and represented by legal representatives and Sukhdev Singh. Labh Singh was father of plaintiffs and defendant no. 1 and Regular Second Appeal No. 1894 of 2011 -2- grandfather of defendants no. 2 to 4. Labh Singh was owner of 240 kanals 17 marlas land in question. The plaintiffs claimed 3/4th share therein by way of natural inheritance, the other 1/4th share being of defendant no. 1. The plaintiffs accordingly sought declaration that they are owners in possession of 180 kanals 13 marlas being 3/4th share of 240 kanals 17 marlas and defendants have no right, title or interest therein. Permanent injunction was also prayed. Defendants no. 1, 2 and 4 contested the suit and broadly denied the plaint allegations. It was pleaded that defendants herein had filed suit on 30.3.1972 against Labh Singh who by filing written statement admitted their claim and consequently that suit was decreed vide decree dated 12.4.1972 regarding 4/5th share of 240 kanals 17 marlas in question and mutation was accordingly sanctioned depicting defendants herein to be owners in possession thereof. Labh Singh executed registered Will dated 27.1.1970 in favour of defendant no. 1 regarding the remaining 1/5th share in the aforesaid total land. It was pleaded that plaintiffs have no right, title or interest in the suit land and defendants are absolute owners in possession thereof. Suit filed by the plaintiffs was also pleaded to be barred by limitation. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Patti vide judgment and decree dated 16.10.2008 while deciding substantive issues in favour of the plaintiffs held the suit to be not maintainable for want of challenge to consent decree dated 12.4.1972 and Will dated 27.1.1970 set up by the defendants and therefore, dismissed the suit. However, first Regular Second Appeal No. 1894 of 2011 -3- appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Taran Taran vide judgment and decree dated 25.1.2011 and thereby suit filed by the plaintiffs stands decreed. Cross-objections preferred by defendants in the aforesaid first appeal have been dismissed by the lower appellate court vide same judgment. Feeling aggrieved, the instant second appeal has been filed. Same appellants have also preferred RSA No. 1895 of 2011 bearing same title. Two appeals have been preferred because there was one first appeal and there were cross-objections in that appeal. I have heard learned counsel for the parties and perused the case file. It is undisputed that Labh Singh was once owner of the total land. It is also undisputed that all the three plaintiffs and defendant no. 1 being daughters and son of Labh Singh were his only natural legal heirs. Consequently, plaintiffs' share would come to 3/4th in the total land and share of defendant no. 1 would come to 1/4th therein. Defendants however set up consent decree dated 12.4.1972 allegedly suffered by Labh Singh in their favour regarding 4/5th share in the total land. The defendants came out with a very strange plea that file of the civil suit in which the said consent decree was passed is not traceable. This plea speaks of cleverness and dishonesty of the defendants and falsehood of their claim based on the alleged decree dated 12.4.1972. Defendants examined Record Keeper of the Judicial Record Room as witness but did not question him about the file of the suit. The said witness did not state Regular Second Appeal No. 1894 of 2011 -4- that file of the civil suit is not traceable. There is also no other evidence to depict that file of the suit is not traceable. On the contrary, the defendants obtained from Record Keeper copy of entry made in the relevant register. The said entry does not give details of any land or the nature of relief granted to the defendants herein. Moreover, to prove their claim the defendants had to produce copy of the decree dated 12.4.1972. However, they have not produced the same. They have also failed to prove that the file of the said suit is not traceable. It thus, becomes, manifest that no such decree was passed and the entire claim of the defendants based thereon is false. Same is the position regarding Will dated 27.1.1970 allegedly executed by Labh Singh in favour of defendant no. 1 regarding 1/5th share of the total land. The said Will has also not seen the light of the day. Defendants tried to play the same trick regarding the Will also. They pleaded in the written statement that the original Will is not traceable. However, falsehood leaves behind some traces. In the written statement dated 23.8.2002 filed on 2.9.2002 it was pleaded that the Will was not traceable. However, in application filed on 21.2.2006 for secondary evidence of the Will, the defendants pleaded that the Will was lost about six months earlier i.e. in or about August, 2005. If it were so, it is not explained as to how the Will was pleaded to have been lost in the written statement filed three years prior to it in August/September, 2002. Thus, defendants' version regarding alleged Will has also rightly been discarded by the courts below. Regular Second Appeal No. 1894 of 2011 -5- It may also be added that in the absence of original Will, its copy could not be proved by secondary evidence because copy in the registration record did not bear thumb impressions or signatures of the executant and the witnesses. Evidence led by the defendants to prove the alleged Will by secondary evidence was also found to be not reliable. Defendants examined two witnesses namely Gurdev Singh DW2 and Bawa Singh DW3. However, they are not the witnesses of the Will. Gurdev Singh alleged that his grandfather attested the Will in his (Gurdev Singh's) presence. However, Gurdev Singh was aged 13/14 years only at the time of execution of the alleged Will and therefore, his presence at that time has been rightly held to be doubtful and improbable. Similar is the position of Bawa Singh. Moreover, Bawa Singh did not appear for cross-examination and so his testimony cannot be read in evidence. Thus, the Will has also not been proved. It is also significant to notice that according to application for secondary evidence, the Will was lost in or about August, 2005 i.e. three years after the defendant had already filed the written statement. It is inconceivable that defendants would not take proper care of the Will when the same was required to be produced in evidence knowing fully well that suit had been instituted by the plaintiffs and claim of defendants regarding 1/5th share of the total land was based on the said Will. Learned counsel for the appellants contended that consent decree dated 12.4.1972 and Will dated 27.1.1970 have not been challenged Regular Second Appeal No. 1894 of 2011 -6- in the suit and therefore, suit is not maintainable. The contention cannot be accepted because the alleged consent decree and Will have not been proved and therefore, there was no necessity to challenge the same. For the reasons aforesaid, I find no merit in the instant second appeals. Suit of the plaintiffs has been rightly decreed by the lower appellate court. Concurrent finding recorded by both the courts below regarding alleged decree dated 12.4.1972 and Will dated 27.1.1970 does not suffer from any illegality or perversity nor it is based on misreading or misappreication of evidence so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in these second appeals. Accordingly, both the appeals are dismissed. ( L.N. Mittal ) May 02, 2011 Judge 'dalbir'