RSA No.3619 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.10239 -C and 10240-C of 2011 and RSA No.3619 of 2011 Date of decision 27.9.2011. Bhawani Ram ...... Appellant versus Ramesh Kumar and others ...... Respondents. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? yes 3. Whether the judgment should be reported in the Digest? yes Present : Mr. P.S.Jammu, Advocate for the appellant. K.C.PURI . J. C.M.Nos.10239 -C of 2011 For the reasons mentioned in the application 117 days delay in re-filing the appeal stands condoned. RSA No.3619 of 2011 2 C.M. stands disposed of accordingly. C.M.Nos. 10240-C of 2011 For the reasons mentioned in the application 92 days delay in filing the appeal stands condoned. C.M. stands disposed of accordingly. MAIN APPEAL. Plaintiff/appellant has directed this regular second appeal against the judgment and decree dated 16.9.2010 passed by Dr.Shiva Sharma, District Judge, Sirsa vide which the appeal filed by the plaintiff/appellant against the judgment and decree dated 8.12.2009 passed by Shri Amarjit Singh, Civil Judge (Junior Division), Dabwali was dismissed. 2. The plaintiff filed suit for declaration and consequential relief of permanent injunction with the allegation that property in dispute was earlier owned by Uda Ram and the same was inherited by Fakir Chand. Fakir Chand has four sons i.e. plaintiff and defendant Nos.2 to 4. The suit property was ancestral and coparcenary property. The plaintiff having a right in the suit property by birth. The suit property was in exchanged in lieu of the property devolved upon Fakir Chand from his father through exchange. Fakir Chand executed Will dated 17.3.1993 in favour of plaintiff and defendants No.2 to 4. The Will dated 30.8.2001 in favour of defendants was never executed by Fakir Chand. The defendants did not recognize the claim of the plaintiff. Hence the suit. RSA No.3619 of 2011 3 3. On put to notice, defendants filed written statement admitting the relationship, however, it is pleaded that suit property was self-acquired property of Fakir Chand and Fakir Chand executed registered Will dated 30.8.2001 in favour of the defendants which included Ramesh Kumar son of Bhawani Ram plaintiff. The defendants are owners in possession on account of the Will dated 30.8.2001. 4. Replication to the written statement was filed controverting all the allegations of the written statement and re-affirmed those of the plaint. 5. From the pleadings of the parties the following issues were framed by the learned trial court:- 1. Whether the Will dated 30.8.2001 is liable to be set aside being surrounded by suspicious circumstances ?OPP 2. Whether the plaintiff is entitled for injunction restraining the defendants from interfering in his possession and ousting him from the suit land ?OPP 3. Whether the Will dated 30.8.2001 is legal and valid ?OPD 4. Relief. 6. In order to prove the case, the plaintiff himself appeared as PW-1 and produced certain documents. 7. In rebuttal, defendant No.3 himself appeared as DW-3 and also examined Tej Bhan Deed Writer as DW-1 and Sunder Dass (DW-2 ) and proved the Will dated 30.8.2001. 8. Learned trial Court after appraisal of the evidence returned the findings on all the issues in favour of the defendants and against the plaintiff. Consequently, dismissed the suit of the plaintiff vide judgment and decree dated 8.12.2009. RSA No.3619 of 2011 4 9. Feeling dissatisfied with the aforesaid judgment and decree dated 8.12.2009, the plaintiff/appellant preferred the first appeal. The said appeal was heard by Dr.Shiva Sharma, District Judge, Sirsa and after re- appraisal of the evidence dismissed the appeal vide judgment and decree dated 16.9.2010. 10. Still feeling dissatisfied with the judgment and decree dated 8.12.2009 passed by the trial Court and judgment and decree dated 16.09.2010 passed by the First Appellate Court, the plaintiff/appellant has preferred the present regular second appeal. 11. The appellant in paragraph No.6 of the grounds of appeal has mentioned that following substantial question of law have arisen for decision in the present regular second appeal :- 1. Whether the impugned judgments and decrees passed by both the Courts below are perverse, wrong, illegal and against the law and facts on the file and are liable to be set aside in the present appeal ? II. Whether the impugned judgments and decrees passed by both the Courts below are contrary to the settled law by this Hon'ble Court as well as by Hon'ble Supreme Court of India ? 12. The learned counsel for the appellant has submitted that suit property is joint Hindu family coparcenary property and as such the appellant has right in the suit property by birth. The First Appellate Court has observed that 1/7th share of the property was owned by grandfather of the plaintiff Uda Ram which was inherited by Fakir Chand, So both the Courts below have dismissed the suit of the plaintiff to that extent. However, the counsel for the appellant is fair enough to concede that since RSA No.3619 of 2011 5 there is concurrent finding of fact recorded by both the Courts below regarding execution of the Will and as such the same cannot be challenged. 13. The crucial issue arose for determination in the present case is as under :- (1) Whether Fakir Chand executed registered Will dated 30.8.2001 in favour of the defendants by revoking earlier Will dated 17.3.1993 in which plaintiff was also benefitted. 14. The counsel for the appellant is fair enough to concede that the Will dated 30.8.2001 stands proved and that being the concurrent finding of fact cannot be challenged in the regular second appeal. 15. So far as submission made by counsel for the appellant that 1/7th share of the property inherited by Fakir Chand from Uda Ram is ancestral property is concerned that fact also stands admitted. Admittedly, Fakir Chand received the property of his mother and five sisters by two different decrees. The property which received by a person other than the inheritance cannot be held to be coparcenary property. So, that being a finding of fact recorded by both the Courts below cannot be interferred in the regular second appeal. There is nothing on the file that the judgments and decrees passed by both the Courts below are contrary to the settled principles of law by this Court and by Hon'ble Apex Court. 16. In view of the above discussion, the substantial questions raised above by the learned counsel for the appellant stand determined against the appellant and consequently the regular second appeal is without any merit and the same stands dismissed. RSA No.3619 of 2011 6 17. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 27, 2011 sv