R.S.A.No.4290 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4290 of 2008 Date of Decision : 10.07.2009 Laxman Dass and others ...Appellants Versus Suba Ram and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. L.N.Verma, Advocate, for the appellants. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby his suit for declaration to the effect that he is owner in possession of 1/5th share of land measuring 19 Kanals 18 Marlas and the Will dated 17.9.1991 allegedly executed by Mahla Singh and Will dated 27.6.1994 executed by Smt. Gehli Bai wife of Mahla Singh, is illegal, wrong and void and will not affect the rights of the plaintiff, was dismissed. Lal Chand, father of Mahla Singh was the owner of land measuring 97 Kanals 5 Marlas. He had five sons i.e. plaintiff and defendant Nos.1 to 4. On 12.4.1983, Mahla Singh suffered a consent decree in favour of defendant Nos.1 to 4 in respect of land measuring 77 Kanals 7 Marlas. The said decree is not the subject matter of challenge in the present suit. Subsequently, the land measuring 19 Kanals 18 marlas was bequeathed by Mahla Singh in favour of his wife Smt. Gehli Bai vide R.S.A.No.4290 of 2008 2 Will dated 17.9.1991 Ex.DA. However, subsequently Smt. Gehli Bai has executed a Will dated 29.8.1997 Ex.D-1 bequeathing the property in favour of defendant Nos.3 & 4. Aggrieved against the bequeath by Smt. Gehli Bai, the plaintiff filed present suit for declaration. Both the Courts have returned concurrent finding that the plaintiff has led no evidence to prove that the property in the hands of Mahla Singh was joint family property. The only proof of joint hindu family is the averment made in the plaint, which lead to the decree dated 12.4.1983. Both the Courts found that such pleadings are not sufficient to determine the nature of the property, in the absence of the evidence of devolvement of the property of Mahla Singh. The Courts also found that both the Wills stand proved on the basis of the statement of witnesses produced by the defendants. Aggrieved against the decree so passed, the legal representatives of the plaintiff are in second appeal. Learned counsel for the appellant has vehemently argued that once the defendants have got the property on the basis of decree dated 12.4.1983, as a member of joint hindu family, therefore, the said defendants cannot be permitted to wriggle out of the averments made in the aforesaid suit. Therefore, it was not necessary for the plaintiffs to lead any other evidence and the averments made in the plaint were sufficient to conclude that the property in the hands of Mahla Singh was a joint hindu family property. I do not find any merit in the said stand of the appellant. The decree dated 12.4.1983 is not subject matter of challenge by the appellant. May be the defendants have got the decree by a self-serving R.S.A.No.4290 of 2008 3 statement. But the plaintiff was required to lead evidence in respect of nature of the property in the hands of Mahla Singh to succeed in the present suit. The revenue record alone would prove the devolvement of property upon Mahla Singh. In the absence of any proof of devolvement upon Mahla Singh, the findings recorded by the Courts below that the property in the hands of Mahla Singh was not the joint hindu family cannot be said to be illegal, which may rise to any substantial question of law for consideration of this Court in second appeal. Similarly, the Wills Ex.DA dated 17.9.1991 and Ex.D-1 dated 29.8.1997, are proved to have been executed by Mahla Singh, are again based upon appreciation of evidence. Both the Courts below have recorded that the said Wills stand proved on the basis of evidence of the attesting witnesses. The Courts below have taken into consideration the evidence of experts while returning the finding of due execution of the Wills. It could not be pointed out that any part of evidence has been misread or not taken into consideration. Therefore, the findings recorded by the Courts below are findings of fact based on appreciation of law. Such findings do not give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 10.07.2009 (HEMANT GUPTA) Vimal JUDGE