R.S.A.No. 1254 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1254 of 2010 (O&M) Date of decision: 16.2.2011 Paramjit Singh ......Appellant Versus Dalbir Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.K.Singla, Advocate, for the appellant. Mr. Arvind Kashyap,Advocate for respondents No.1 to 10 **** SABINA, J. Plaintiffs had filed a suit for declaration to the effect that the plaintiffs and proforma defendants No. 2 to 6 were owners in joint possession of 1/5th share of Amar Singh, deceased, son of Mit Singh. The case of the plaintiffs, in brief, was that Amar Singh was real brother of deceased Balwant Singh and the proforma defendants. Amar Singh had died un-married and issueless. The share of Amar Singh was inherited by the plaintiffs and proforma defendants No.2 to 6 in equal shares. Amar Singh had not executed R.S.A.No. 1254 of 2010 (O&M) 2 any Will in favour of defendant no.1. The plaintiffs came to know about sanction of impugned mutation only in the month of May 1998. Defendant No. 1, in his written statement, averred that Amar Singh was the real brother of plaintiffs and proforma defendants. Amar Singh had died un-married and issueless. The property of Amar Singh had not been inherited by the plaintiffs and defendants No.2 to 6. In fact the said defendants had no concern with the share of Amar Singh. Answering defendant had been adopted by Amar Singh. Amar Singh had executed a Will dated 22.7.1972 in favour of the answering defendant. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for the declaration and for joint possession of 1/5th share of deceased Amar Singh as fully described in the plaint? OPP. 2. Whether the plaintiff is entitled to the declaration that the mutation No.359 dated 23.11.1974 is illegal and is not binding on the plaintiff and proforma defendants and liable to be set aside ? OPP 3. Whether the plaintiff is entitled for permanent injunction prayed for ? OPP 4.Whether the suit is not maintainable? OPD 5. Relief.” The trial Court decreed the suit of the plaintiffs vide judgment and decree dated 7.4.2009 and held that the plaintiffs and proforma defendants No.2 to 6 were joint owners in joint possession of the property of Amar Singh and the mutation dated 23.11.1974 R.S.A.No. 1254 of 2010 (O&M) 3 was illegal, null and void and was not binding on the rights of the plaintiffs and proforma defendants No.2 to 6. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal and the same was dismissed vide judgment and decree dated 3.2.2010 passed by District Judge, Fatehgarh Sahib. Hence, the present appeal by defendant No.1. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, Amar Singh was brother of plaintiff Balwant Singh and proforma defendants No.2 to 6. the fact that Amar Singh had died un-married and issueless was admitted by the appellant in his written statement. Further it was averred by the appellant that he was the adopted son of Amar Singh. In order to establish the factum of adoption of the appellant by Amar Singh, he had placed reliance on his matriculation examination certificate Ex.D-C, wherein, appellant has been described as son of Amar Singh. On the other hand, the plaintiffs had proved on record Ex.P-13, delivery challan, whereby the appellant had purchased a tractor and has been described as son of Gurdev Singh. The appellant had failed to lead any other evidence to substantiate his plea that he had been adopted by Amar Singh. In these circumstances, the Courts below did not place any reliance on Ex.DC as the same could not be said to be proof of adoption of appellant by Amar Singh. The appellant had averred that the Will dated 22.7.1972 had been executed by Amar Singh in his favour. However, the appellant had failed to establish the due execution of the Will set up by him. The Will Ex.DW2/A is an R.S.A.No. 1254 of 2010 (O&M) 4 un-registered document. The only witness examined by the appellant to establish the execution of Will, DW-3 Subhash Chander did not support the case of the appellant. In these circumstances, the due execution of the Will in question was not proved on record by the appellant. Hence, the property owned by Amar Singh was liable to be inherited by his heirs by way of natural succession. Since the plaintiffs had filed a suit for declaration basing their claim of natural succession, the suit was not barred by limitation. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 16, 2011 anita