IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2063 of 2010(O&M) Date of Decision: September 6, 2011. Ashok Kumar. ...... APPELLANT (s) Versus Rati Ram and another. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Sanjay Mittal, Advocate for the appellant. ***** RAM CHAND GUPTA, J.(Oral) CM No.6318-C of 2010 Heard. Taking into consideration the facts mentioned in the application accompanied by affidavit, delay of one day in filing the appeal is, hereby, condoned. Civil Misc. stands disposed of. CM No.6319-C of 2010 Heard. In view of the facts mentioned in the application accompanied by affidavit, delay of 45 days in refiling the appeal is, hereby, condoned. Civil Misc. stands disposed of. RSA No.2063 of 2010 CM No.6320-C of 2010 The application is allowed subject to just exceptions. RSA No.2063 of 2010(O&M) The present regular second appeal has been filed against judgment and decree dated 18.05.2009 passed by learned District Judge, Rewari dismissing appeal filed by the present appellant-plaintiff against judgment and decree dated 28.02.2008 passed by learned Additional Civil Judge(Senior Division) Rewari dismissing suit filed by present appellant- plaintiff, was dismissed. I have heard learned counsel for the appellant and have gone through the whole record carefully including the impugned judgments passed by learned courts below. Briefly stated, appellant plaintiff filed this suit for declaration that sale deed dated 10.02.1999 executed by respondent-defendant No.1 in favour of respondent-defendant No.2 is null and void as also to direct the revenue authorities to get the revenue record corrected as per law and to restore the position as it prevailed on 22.07.1994. Plea has been taken that Kundan Lal was owner of the property in dispute by way of purchase and he has executed a Will in favour of present appellant-plaintiff. The Will is dated 18.02.1993. The said Will was also challenged by Smt. Gulkandi wife of Kundan Lal during mutation proceedings and however, Smt. Gulkandi expired during the mutation proceedings. Respondents-defendants have taken the plea that respondent-defendant no.1 had filed a Civil Suit titled as Rati Ram v. Gulkandi No.953 dated 06.04.1994 in which present appellant- 2 RSA No.2063 of 2010 plaintiff and his father Shyam Lal made applications for being impleading them as party and however, the said applications were dismissed. Plea has been taken that previously Smt.Gulkandi was owner of the suit property who had executed a Will dated 26.04.1994 in favour of respondent-defendant No.1. He later on executed sale deed dated 15.02.1999 for valuable consideration in favour of respondent-defendant no.2 who is now owner in possession of the same regarding the Will on which reliance has been placed by appellant-plaintiff. The said Will was not validly executed and the same is a fictitious and forged document. Learned trial Court dismissed the suit filed by appellant-plaintiff by holding that the plaintiff has failed to prove the Will allegedly executed by Kundan Lal in his favour. Appeal failed against the said judgment and decree was also dismissed by learned first appellate Court. It has been contended by learned counsel for the appellant- plaintiff that though only certified copy of Will has been placed on record and however, plaintiff has examined son of one of the attesting witnesses, who has since expired. It has also been contended that, moreover, Will in favour of respondent-defendant No.1 by Smt. Gulkandi has also not been proved. However, there is no explanation as to why the other attesting witnesses of the Will allegedly executed in favour of appellant-plaintiff were not examined. Original Will has not been placed on record. Only a certified copy Will dated 18.02.1993 has been placed on record. Son of one of the attesting witnesses, Sultan Singh cannot be said to be an attesting witness of Will. However, nothing has come on the record Lakhi Ram, Lambardar another attesting witness has been not available for examination. Even scribe 3 RSA No.2063 of 2010 of the Will has not been examined. Hence, it has been rightly held by learned courts below that the Will dated 18.02.1993 allegedly executed in favour of present appellant-plaintiff has not been proved as Section 68 of the Indian Evidence Act. Hence, he is having no right to challenge the mutation of inheritance regarding property left by Kundan Lal in favour of his wife Smt. Gulkandi and others. Hence, he is having no right to challenge the sale deed executed by Rati Ram in favour of respondent-defendant no.2. So far as Will executed by Smt. Gulkandi in favour of respondent-defendant no.1 is concerned, the same was also not challenged by appellant-plaintiff in the suit. Hence, in view of these facts, it cannot be said that any illegality has been committed by the Courts below in passing the impugned judgments and decrees. Finding recorded by both the Courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. ( RAM CHAND GUPTA ) September 6, 2011. JUDGE 'om’ 4