IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3281 of 2009 Date of Decision : September 10, 2009 Shalinder Singh Parihar and others ....Appellants Versus Gurmit Kaur Minhas and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sanjay Gupta, Advocate T.P.S. MANN, J. Suit for declaration filed by the appellants that they were owners and in possession of the suit land situated in village Karnana, Tehsil and District Nawanshahr with consequential relief of permanent injunction so as to restrain the respondents from interfering in their possession, was dismissed by the learned Civil Judge (Junior Division), Nawanshahr, on 19.4.2006, which judgment and decree was upheld by the learned Additional District Judge, Nawanshahr, on 11.5.2009, when the first appeal filed by the appellants under Section 96 of the Code of Civil Procedure, was dismissed. Aggrieved of the same, they are now before this Court by filing the present second appeal under Section 100 of the Code. In their plaint, the appellants had averred that Dilbagh Singh, their father and that of defendants/respondents No.1 to 8 and husband of defendant No.1, was owner in possession of the suit land. It were the R.S.A. No. 3281 of 2009 -2- appellants, who used to serve their father and rendered him necessary facilities. In lieu of their services, Dilbagh Singh executed a Will dated 12.5.1988 in their favour. At that time he was in a sound disposing mind in respect of his entire estate. Some days later, Dilbagh Singh died. The appellants came in possession of the suit land on the basis of the Will dated 12.5.1988. However, as the appellants were residing abroad, the respondents took undue advantage of their absence from India and got the mutation of inheritance of the estate of Dilbagh Singh sanctioned in their names, as well and, thereafter started declaring that they were also owners of the suit land. The suit was contested by defendant No.1, namely, Swaran Kaur widow of Dilbagh Singh by filing her written statement mentioning therein that the Will dated 12.5.1988 was not the last Will of Dilbagh Singh. Infact, Dilbagh Singh executed another Will dated 15.6.1988 in her favour. The said Will was the last Will executed by Dilbagh Singh. On the basis of the Will dated 15.6.1988, the said defendant obtained probate No.24131 dated 23.11.1988 by the Hon'ble High Court of Fiji. So much so that Gurmej Singh Parihar, one of the appellants, had submitted an affidavit wherein he admitted the Will dated 15.6.1988 executed by his father Dilbagh Singh to be correct. After hearing learned counsel for the parties and going through the file, the learned trial Court held that the Will dated 15.6.1988 executed R.S.A. No. 3281 of 2009 -3- by Dilbagh Singh stood admitted by one of the appellants and, therefore, the appellants were not entitled to seek declaration that they were owners and in exclusive possession of the suit property. The mutation as sanctioned and shown in jamabandi Ex.P8 was correct and binding upon the parties. These findings were upheld in appeal by the learned lower appellate Court. In her written statement, Swaran Kaur-defendant No.1 had stated that Gurmej Singh Parihar, one of the appellants, had admitted the Will dated 15.6.1988 executed by Dilbagh Singh. It was also stated that on the basis of the said Will, Swaran Kaur-defendant had obtained the probate from the Hon'ble High Court of Fiji. These facts were not denied by the plaintiffs- appellants when they filed their replication to the written statement of Swaran Kaur-defendant, as is clear from para 8 of the judgment passed by the learned lower appellate Court. The plaintiffs-appellants were required to prove the execution of Will dated 12.5.1988 by their father Dilbagh Singh in their favour. The plaintiffs had examined one Pritam Singh Minhas to prove the Will in their favour. Said Pritam Singh Minhas, while appearing as a witness for the plaintiffs deposed that Dilbagh Singh deceased had put his signatures on Will dated 12.5.1988 (Ex.P4) in his presence as well as in the presence of the attesting witnesses. His testimony was found to be not inspiring confidence for the reason that he did not state as to at what place or on R.S.A. No. 3281 of 2009 -4- which date Dilbagh Singh executed the Will. Moreover, the purported signatures of Dilbagh Singh as appearing on Will dated 12.5.1988 were not got compared with his admitted signatures, which could have been obtained from his pass book or bank account. The concurrent findings of facts, arrived at by the learned Courts below, are based on proper appreciation of the material evidence brought on the record. These findings cannot be said to be either perverse or suffering from any illegality or infirmity. These findings cannot be upset and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. No such question of law, as claimed by the appellants, much less any substantial question of law arises for determination. The appeal is, accordingly, dismissed in limine. ( T.P.S. MANN ) September 10, 2009 JUDGE ajay-1