RSA No. 2052 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2052 of 2008 (O&M) DATE OF DECISION : DECEMBER 9, 2010 Ratno Devi & Another .... Appellants Versus Om Parkash & Ors. .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL Present: Mr. Hitesh Kaplish, Advocate for the appellants. Mr. Mandeep Singh Sachdev, Advocate for respondent No.1. **** L. N. Mittal, J. (Oral) This is second appeal by defendant Nos.2 and 3 having remained unsuccessful in both the courts below. Respondent-plaintiff Om Parkash filed suit against appellants and proforma respondents No.1 to 4 for possession of the suit property and also for permanent injunction. The plaintiff alleged that the suit property was allotted to Tara Chand by rehabilitation department in lieu of his property left in Pakistan. Tara Chand also raised some construction in it. He bequeathed the suit house to his son Mangal Dass vide will dated 19.09.1973. Accordingly, Mangal Dass became owner in possession of the suit house. Mangal Dass vide will dated 20.10.1989 bequeathed it in favour of plaintiff who had been serving Mangal Dass who was unmarried and issueless. Indro Devi was daughter of Tara Chand. She had died without leaving behind any legal heir. Defendants claimed themselves to be sons and daughters of Indro Devi, but in fact they are not so. Defendants have no right, title or interest in the suit property. However, defendant Nos. 1 to 3 RSA No. 2052 of 2008 (O&M) -2- trespassed into the suit property on 28.09.1995 and took forcible possession thereof. Accordingly, the plaintiff filed suit for possession of the suit house on the basis of tittle. The plaintiff also claimed ancillary relief of permanent injunction. Defendants in their written statement admitted that suit property was allotted to Tara Chand who also raised some construction in it. However, defendants broadly controverted the other plaint allegations. Defendants pleaded that Tara Chand had only one issue i.e. daughter Indro Devi. Defendants are sons and daughters of Indro Devi. Tara Chand had no son. Will by Tara Chand and will by Mangal Dass as set up by the plaintiff were denied. Defendants claimed themselves to be owners in possession of the suit property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jalndhar vide judgment and decree dated 31.08.2005 decreed the plaintiff's suit. First appeal preferred by defendants No.1 to 3 has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 23.02.2008. Feeling aggrieved, defendants No.2 and 3 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. There is concurrent finding by the courts below that defendants are not proved to be sons and daughters of Indro Devi. Consequently defendants have no right, title and interest in the suit property. On the other hand, plaintiff has proved will dated 19.09.1973 executed by Tara Chand and also will dated 20.10.1989 executed by Mangal Dass in favour of plaintiff. Attesting witnesses of both the Wills have been examined. They RSA No. 2052 of 2008 (O&M) -3- have stated about execution of the Wills. Learned counsel for the appellants contended that Mangal Dass died six days after the execution of the alleged will dated 20.10.89. However, merely on this ground, the said will cannot be said to be suspicious. In this view, I am supported by judgment on Hon'ble Supreme Court in Madhukar D. Shende Vs. Tarabai Aba Shedage, 2002(1) Marriage Law Journal 668 and judgment of this court in Re: Estate of Smt. Jyotsna Prabha Kohli, 2005(2) Civil Court cases 659 (P&H). In the case of Madhukar D. Shede (supra), the testatrix died just a day after the execution of the will whereas in the case of Smt. Jyotsna Prabha Kohli (supra), the testatrix died within three weeks of the execution of the will. It was held that this circumstance by itself is not a suspicious circumstance to discard the will. Consequently in the instant case, the mere fact that testator Mangal Dass died within six days after execution of Will cannot be said to be a suspicious circumstance to discard the will. Learned counsel for the appellant contended that the Wills in question were for the first time produced in the instant suit. However, this cannot be said to be suspicious circumstance. As rightly pointed out by counsel for respondent-plaintiff, prior to it, there was no occasion for the plaintiff to produce the said Wills anywhere as his title and possession over the suit property was never challenged earlier by anybody. In addition to the aforesaid, it may be added that the defendants, who are not related to Tara Chand original owner of the suit property in any manner, have no locus standi to challenge the aforesaid Wills. Defendants have no right, title or interest in the suit property and therefore, they have no right to continue in possession. RSA No. 2052 of 2008 (O&M) -4- Both the Courts below on proper appreciation of evidence have come to concurrent finding in favour of plaintiff-respondent. The said finding is fully justified by the evidence on record and is supported by cogent reasons and therefore, the said finding can not be said to be perverse or illegal so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. (L. N. MITTAL) JUDGE December 9, 2010 'raj'