Regular Second Appeal Nos.3594 & 3952 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.3594 of 2008 Lal Chand son of Kundan ...Appellant Versus Parmod and another ...Respondents 2. Regular Second Appeal No.3952 of 2008 Sanjay and others ...Appellants Versus Parmod and another ...Respondents Date of Decision:- 7.9.2011 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Arun Jain, Senior Advocate with Mr.Sunil Sharma, Advocate for the appellants. Mr.Arun Palli, Senior Advocate with Mr.Mayank Mathur, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated, described the compendium of the pleadings and evidence brought on record by the parties, therefore, there appears to be no necessity to again reproduce and repeat the same in these regular second appeals. However, since the identical factual matrix is involved, so, I propose to decide both the indicated appeals, arising out of the same impugned judgments and decrees of the Courts below, by virtue of this common judgment in order to avoid the repetition. 2. Tersenessly, the facts, culminating in the commencement, relevant for deciding the present appeals, extracted from RSA No.3594 of 2008 titled as “Lal Chand Vs. Parmod and another” and emanating from the record, are that one Hardwari was the owner of the land in dispute, situated within the revenue Regular Second Appeal Nos.3594 & 3952 of 2008 -2- estate of village Teha, Tehsil Ganaur, District Sonepat. He had two sons, namely, Kundan and Ram Diya. Appellant-plaintiff Lal Chand (for brevity “the plaintiff), in civil suit bearing No.839 of 1999/2001 (in short “Ist suit”) is the son of Kundan, whereas Krishan Dutt was son of Ram Diya. Besides him, Ram Diya had two daughters. Krishan Dutt was adopted by Manphool in the year 1955. During his life time, Ram Diya executed a registered Will dated 10.12.1998 (Ex.P2) (for short “Ist Will”) in favour of the plaintiff in the first suit, with respect to the land mentioned therein. He (Ram Diya) was also stated to have suffered a collusive decree dated 3.3.1992 (Ex.P22) in civil suit bearing No.138 of 1991 titled as “Smt.Sama Kaur and others Vs. Ram Diya”, in regard to the land described therein. Ram Diya again executed his 2nd (last) registered Will dated 30.4.1999 (Ex.PW2/A) (in short “2nd Will”) in favour of his grand sons, nephew and daughters, nullifying the Ist Will. The mutation, bearing No.1022 dated 7.6.1999 (Ex.P8), was also sanctioned in favour of beneficiaries and in lieu of 2nd Will. The disputed land was also attached under sections 145/146 Cr.PC on 26.4.2000. 3. Aggrieved by the 2nd Will (Ex.PW2/A) and mutation (Ex.P8), plaintiff Lal Chand filed the first suit, challenging the same, inter-alia pleading that he became owner of the disputed land, in view of first Will (Ex.P2), but the defendants are claiming their ownership over it, in pursuance of 2nd Will, which was stated to be a forged document. The indicated 2nd Will and mutation, sanctioned in pursuance thereof, were termed to be wrong and arbitrary. On the basis of aforesaid grounds, plaintiff Lal Chand filed Ist suit for a decree of declaration to the effect that the 2nd Will (Ex.PW2/A), subsequent mutation (Ex.P8), in pursuance thereof and collusive decree (Ex.P22), are wrong, illegal, void, liable to be set aside, not binding on his (plaintiff's) right and he be declared as owner and in possession of the suit land, with a consequential relief of permanent injunction, restraining Parmod and Vinod sons of Krishan, natural son of Ram Diya (adopted son of Manphool) respondent-defendants (for brevity Regular Second Appeal Nos.3594 & 3952 of 2008 -3- “the defendants in the Ist suit”) from dispossessing him and from alienating the property in dispute in any manner in the garb of collusive decree (Ex.P22), 2nd Will (Ex.PW2/A) and mutation (Ex.P8), in the manner indicated hereinbefore. 4. The defendants contested the first suit and filed the written statement, inter-alia raising certain preliminary objections of, maintainability of the suit, concealment of facts, cause of action and locus standi of the plaintiff. The case set up by the defendants, in brief in so far as relevant, was that Ram Diya did not execute the Ist Will dated 10.12.1998 (Ex.P2) in favour of plaintiff Lal Chand, rather he executed the 2nd Will dated 30.4.1999 (Ex.PW2/A) in favour of all the beneficiaries. The defendants have also challenged the civil court decree alleged to have been suffered by deceased Ram Diya in favour of Sama Kaur and others, on the basis of fraud, inter-alia pleading that the same was never acted upon and Ram Diya was shown to be owner and in possession of the suit land, much after the decree. It was reiterated that Ram Diya executed the valid and genuine 2nd Will (Ex.PW2/A) and mutation (Ex.P8), in pursuance thereof, was sanctioned in their (beneficiaries) favour by the revenue officers. 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. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. 6. Sequelly, Parmod and Vinod sons of Krishan Dutt defendants (in Ist suit) filed 2nd civil suit bearing No.932 of 1999/2001 against Sama Kaur and others defendants seeking a decree for declaration, challenging the collusive decree (Ex.P22) and claimed that they are owners and in possession of the suit land. According to them, the indicated collusive decree has neither seen the light of the day nor was disclosed by Lal Chand etc. in another suit filed by them, which was dismissed as withdrawn on 29.5.1999. It was neither registered nor implemented and no transfer took place on its basis. They reiterated the genuineness of 2nd Will Regular Second Appeal Nos.3594 & 3952 of 2008 -4- (Ex.PW2/A) and mutation (Ex.P8) in this regard. 7. Likewise, the defendants (in 2nd suit) contested the suit on the same line of pleadings as contained in the plaint of Ist suit and prayed for dismissal of 2nd suit, in the manner depicted hereinabove. 8. The trial Court consolidated both the suits, by way of order dated 24.9.2007 and in the wake of pleadings of the parties, the following issues were framed for proper adjudication of the case :- 1. Whether Ram Diya had executed a valid Will dated 10.12.1998 in favour of plaintiff Lal Chand in respect of suit property detailed in para No.3 of the plaint?OPP. 2. Whether order dated 26.4.2000 passed under Section 145 Cr.P.C. By the S.D.M. is illegal, void and not binding on the plaintiff?OPP 3. Whether the judgment and decree passed on dated 3.3.1992 is illegal, null and void and not binding upon the rights of the defendant and is liable to be set aside?OPD 4. Whether the defendants are the owners in possession of the suit property?OPD 5. Whether the alleged Will dated 30.4.1999 and the mutation sanctioned on the basis of the Will bearing No.1022 dated 7.6.1999 is legal and valid?OPD 6. Whether the suit of the plaintiff is not maintainable in the present form?OPD 7. Relief. 9. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 10. The trial Court, after taking into consideration the entire evidence on record, ignored the collusive decree (Ex.P22), upheld the 2nd Will (Ex.PW2/A), disposed of both the suits and dismissed the Ist suit filed by plaintiff Lal Chand, by means of impugned judgment and decree dated 20.11.2007. 11. Dissatisfied with the decision of the trial Court, Lal Chand plaintiff in Ist suit, filed Civil Appeal, bearing No.104 of 2007, while Sama Kaur and others defendants in 2nd suit, filed Civil Appeal, bearing No.103 of 2007, which Regular Second Appeal Nos.3594 & 3952 of 2008 -5- were dismissed with costs as well, by the Ist Appellate Court, by virtue of impugned common judgment and decree dated 7.10.2008. 12. Still, they did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present separate appeals. That is how I am seized of the matter. 13. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeals in this respect. 14. Ex facie, the arguments of learned counsel that since the 2nd registered Will (Ex.PW2/A) is surrounded by suspicious circumstances, in the execution of which, Krishan Dutt adopted son of Manphool, has taken active part, so, the Courts below committed a legal mistake in accepting the same and ignored the collusive decree (Ex.P22), are not only devoid of merit but misplaced as well. 15. As is evident from the record and shorn of necessary details that plaintiff Lal Chand in the Ist suit, has claimed that he became owner of the suit land, by way of Ist Will (Ex.P2) executed by Ram Diya of the part of the property and collusive decree (Ex.P22), with respect to the land depicted therein. On the contrary, the defendants in the Ist suit, are the beneficiaries, in pursuance of 2nd registered Will (Ex.PW2/A), which nullified the Ist Will in this context. 16. Such thus being the position on record, now the core controversy, that arises for determination in these appeals is, as to whether the 2nd registered Will (Ex.PW2/A) is surrounded by suspicious circumstances, as alleged by plaintiff Lal Chand or is a valid and genuine document, as claimed by the defendants. 17. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative, as the execution, validity and genuineness of the 2nd registered Will (Ex.PW2/A) is duly proved on record, by means of cogent evidence. Regular Second Appeal Nos.3594 & 3952 of 2008 -6- 18. However, the celebrated submission of learned counsel for the appellants that as Krishan Dutt and Lachhmi Devi moved an application (Ex.P40) under Order 1 Rule 10 CPC in civil suit titled as “Ram Chand and others Vs. Ram Dia” for impleading them as parties on the ground of collusion of Ram Dia with Lal Chand plaintiff, therefore, there was no occasion for Ram Diya to execute the 2nd Will in favour of his grandsons, nephew and daughters, which according to him, amounts to a suspicious circumstance, sans merit. To my mind, the mere fact of moving an application (Ex.P40) by Krishan Dutt and Lachhmi Devi for impleading them as parties in a civil suit, ipso facto, is no ground to ignore the 2nd registered Will (Ex.PW2/A). 19. Similarly, second argument that the execution, registration of 2nd Will in the village and participation of Krishan Dutt are again suspicious circumstances, is also devoid of merit. It is not a matter of dispute that since Krishan Dutt is not the beneficiary of the 2nd Will, so, assuming for the sake of argument (though not admitted) he was present, is not relevant at all in this respect. Moreover, it has come on record that Ram Diya was old person and was not enjoying good health. He was lying sick in his house at the time of execution of 2nd registered Will. Once it is proved on record that Ram Diya was unable to move on account of old age and ill-health, then execution, attestation and registration of 2nd registered Will in the village is most probable, natural and not a ground to discard it, which is otherwise proved on record by cogent evidence, Therefore, it cannot possibly be termed to be suspicious circumstances, as urged on behalf of the appellants. 20. On the contrary, the execution of 2nd registered Will (Ex.PW2/A) is duly proved by DW1 Ram Parshad Deed Writer. It was attested by DW2 Ram Kumar besides other evidence. Not only that, even plaintiff Lal Chand has maintained in his statement dated 24.8.2007, which is available at page 259 of the trial court record, that he has challenged the 2nd Will (Ex.PW2/A) with regard to the share of defendant Nos.1 and 2 only and he does not intend to challenge the Regular Second Appeal Nos.3594 & 3952 of 2008 -7- same Will qua the share of other beneficiaries. That means, he has duly admitted the execution, validity and genuineness of the natural 2nd Will (Ex.PW2/A). This statement clinches the matter. In that eventuality, plaintiff Lal Chand is now estopped and it cannot possibly be saith that the 2nd Will was not genuine. Thus, the contrary arguments of learned counsel for appellants that the 2nd registered Will (Ex.PW2/A) is surrounded by suspicious circumstances “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 21. In this manner, the trial Court has rightly accepted the 2nd registered Will (Ex.PW2/A) and ignored the collusive decree (Ex.P22). Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by means of impugned judgment dated 7.10.2008, which inter-alia, in substance, is (paras 40 and 41) as under:- “40. It has been urged by S/Sh.P.N.Relan and R.D.Gaur, Advocates, the learned counsel for the respondents/defendants that Will Ex.PW2/A bequeathed the properties of Ram Diya amongst five persons who include his nephew Lal Chand and his daughters Laxmi and Kalawati but the civil suit has been brought only in respect of the properties bequeathed in favour of Parmod and Vinod, the natural grandsons of Ram Diya. A perusal of the Will shows that the testator gave all his properties situated in village Teha to his grandsons Parmod and Vinod in equal shares whereas he gave one-fourth share of his properties situated in village Naya Bans to plaintiff Kundan and the remaining three-fourth shares to his daughters Laxmi and Kalawati. It may be very safely said that Will Ex.PW2/A executed on 30.4.1999 took care of the nephew and the daughters of Ram Diya as also his grandsons although Will Ex.P2 did complete injustice to their cause since their adoptive grandfather had divested his adopted son Krishan Dutt of all his properties and had bequeathed them in favour of Ram Diya per Will Ex.P7. Parmod and Vinod were thus left in the lurch by Will Ex.P2. It may be very safely concluded that Will Ex.PW2/A was in fact executed by Ram Diya on 30.4.1999 of his own free will and he took care of his natural grandsons, his daughters and his nephew Lal Chand who had looked after him during his needy days. It is a registered document which should not be seen with an eye of suspicion. 41. In so far as decree Ex.P22 passed on 3.3.1992 is concerned, it did not see the light of the day till Ram Diya died in the month of June, 1999. In other words, appellant Sama Kaur and six others procured the decree and kept it as a closely guarded secret for the next seven years and in fact till the time, the actual Regular Second Appeal Nos.3594 & 3952 of 2008 -8- owner of the property breathed his last. Plaintiff Lal Chand has admitted in so many words that Ram Diya remained in possession of the entire property during his lifetime. If that be so, the contents of plaint Ex.P20 cannot be taken as correct wherein it is recorded that the family arrangement had taken place sometime in the month of October, 1990 and Sama Kaur and six others were put in actual physical possession of the property by Ram Diya.” 22. The learned counsel for the appellants did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant behalf. 23. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, both the courts below have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, 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 well reasoned decision already arrived at by the Courts below, in this context. 24. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below. All other arguments, relatable to the appreciation of evidence, now sought to be urged on their behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 25. Sequelly, the entire matter revolves around the re-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, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of Regular Second Appeal Nos.3594 & 3952 of 2008 -9- the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 26. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 27. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeals are hereby dismissed as such. (Mehinder Singh Sullar) 7.9.2011 Judge AS Whether to be referred to reporter?Yes/No-