R.S.A.No. 1679 of 1996 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1679 of 1996 (O&M) Date of decision: 03.11.2009 Daya Chand and others ......Appellants Versus Muni Devi and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Jain, Sr. Advocate with Mr.Amit Jain, Advocate, for the appellants. Mr.Sandeep Khungar, Advocate, for the respondents. **** SABINA, J. Plaintiffs-respondents filed a suit for declaration, which was dismissed by the Sub Judge, Ist Class, Gohana vide judgment and decree dated 27.1.1994. In appeal, the said judgment and decree were set aside by the Additional District Judge, Sonepat vide judgment and decree dated 8.4.1996 and the suit of the plaintiffs R.S.A.No. 1679 of 1996 (O&M) 2 was decreed. Hence, the present appeal by defendants No.1 to 3. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 7 of its judgment, are as under:- “2. Plaintiffs Muni Devi and Piyari Devi (now appellants) brought a suit with the prayer as indicated in the opening para of this judgment against the defendants Daya Chand, Baldewa, Sultan and Lichhmi (now respondents) alleging therein that they (the plaintiffs) were the daughters of Chandgi Ram deceased, whereas, Smt. Lichhmi defendant No.4 was their mother being the widow of the said Chandgi Ram. Chandgi Ram died in May 1976. He was owner in possession of the suit lands and thus after his said lands being his daughters and the legally wedded wife. 3. It was alleged that the plaintiffs came to know that defendants No.1 and 2, namely, Daya Chand and Baldewa and Pirthi father of defendant No.3 Sultan had prepared a forged will dated 2.12.1970 registered on 21.12.1970 which was of no consequence and as such not binding upon the plaintiffs and their mother defendant No.4. Chandgi Ram deceased had never executed any such Will. The same had been fabricated by the defendants No.1 and 2 and the father of defendant No.3 in collusion with the attesting witnesses R.S.A.No. 1679 of 1996 (O&M) 3 of the said Will. Chandgi Ram deceased never lived in village Ahulana after attaining majority. He was rather residing in house No.4333, Gali Bharonwali, New Sarak, Delhi. 4. It was further alleged that the Assistant Collector II Grade, Gohana had accordingly sanctioned mutation No.3223 on 10.5.1977 on the strength of the aforesaid Will. This mutation was sanctioned at the back of the plaintiffs and defendant No.4. 5. When defendants 1 to 3 refused to admit the claim of the plaintiffs they had to file the suit with the prayer as already noticed. Their mother Smt.Lichmi being an old lady could not join as plaintiff and hence she was impleaded as proforma defendant No.4. 6. Defendants 1 to 3 in their written statement took the stand that the suit was barred by limitation and was not maintainable in its present form and further that the plaintiffs had no locus standi to bring this suit. 7. On merits, it was stated that the plaintiffs and defendant No.4 had no relation with Chandgi Ram deceased who was a widower and issueless. He was residing in village Ahulana and he had validly executed the Will in question in favour of defendants No.1 and 2 and the father of defendant No.3 in lieu of the services R.S.A.No. 1679 of 1996 (O&M) 4 rendered to him. The Assistant Collector II Grade also rightly sanctioned mutation on the strength of the said Will. As plaintiffs and defendant No.4 were not related to Chandgi Ram deceased in any manner so there was no question of issuing any notices to them by the Assistant Collector II Grade before sanctioning the mutation in favour of defendants No.1 and 2 and the father of defendant No.3. It was pleaded that Chandgi Ram used to reside in village Ahulana with defendants No.1 and 2 and the father of defendant No.3 who were looking after him in his old age. That being the position, the suit of the plaintiffs was liable to be dismissed with special costs under Section 35-A CPC.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether deceased Chandgi executed a valid Will No.145 dated 21.12.1970 in favour of defendants No.1 to 3. If so to its effect? OPD 2. Whether the plaintiffs are owners in possession of the suit property as alleged? OPP 3. Whether the suit is barred by limitation? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the suit is not maintainable in the R.S.A.No. 1679 of 1996 (O&M) 5 present form? OPD 6. Whether the proper court fees has not been affixed on the plaint? OPD 7. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiffs had filed a suit claiming property of deceased Chandgi Ram on the ground that they were the daughters of Chandgi Ram and defendant No.2 was his widow. Chandgi Ram died in May, 1976. The appellants, on the other hand, had placed reliance on the Will executed by Chandgi Ram in their favour on 21.12.1970. The defendants, however, failed to prove on record the original Will dated 21.12.1970. In order to prove the Will, appellants examined Clerk from the office of Sub Registrar, who brought the summoned record and stated that the Will Ex.DW-1/A was executed by Chandgi Ram in favour of Daya Chand, Baldewa and Pirthi. However, the appellants failed to prove on record the original Will in question. The appellants also failed to establish that the original Will had been lost. The appellants did not seek permission to lead secondary evidence to prove the due execution of the Will. Although the appellants had examined one of the attesting witnesses of the Will but in the facts and circumstances of the present case, both the Courts below rightly R.S.A.No. 1679 of 1996 (O&M) 6 held that the Will in question had not been duly proved. The next question that requires consideration is as to whether the plaintiffs had been successful in establishing that they were daughters of Chandgi Ram and defendant No.4. Plaintiff Muni Devi, while appearing in the witness box, deposed as per the contents of the plaint. She also deposed to the effect that the plaintiffs had inherited the property of their father in Delhi but they had not got the property of their father in village Ahulana. The defendants failed to cross-examine PW Muni Devi in this regard. Although the defendants led evidence to the effect that Chandgi Ram was un-married and issueless but while filing the written statement, it was averred that Chandgi Ram was a widower. In these circumstances, learned Additional District Judge rightly drew inference that the defendants had not come out with truth. Ex.PX is a compromise effected between the plaintiffs and Ram Phal and Rajinder Singh. Ram Phal and Rajinder Singh were subsequently impleaded as legal representatives of defendant No.3 Sultan. A perusal of Ex.PX reveals that the same is duly signed by Ram Phal and Rajinder Singh. In the said document, it was admitted that plaintiffs were daughters of Chandgi Ram and defendant No.4 was his widow. In these circumstances, the finding of fact given by the learned Additional District Judge, after appreciating the evidence led by the parties on record, that the R.S.A.No. 1679 of 1996 (O&M) 7 plaintiffs were daughters of Chandgi Ram and defendant No.4 was his widow, calls for no interference by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 03, 2009 anita