Punjab-Haryana High Court
Pritpal Singh vs Harbans Singh And Ors on 29 April, 2024
Neutral Citation No:=2024:PHHC:064030
130. 2024:PHHC:064030
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1749 of 2023 (O&M)
Date of decision: 29.04.2024
Pritpal Singh .... Appellant
Versus
Harbans Singh and others .... Respondents
CORAM: HON'BLE MR. JUSTICE GURBIR SINGH
Present: Mr.Vishal Mittal, Advocate, for the appellant.
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GURBIR SINGH, J.
CM-6279-C-2023 Prayer in this application filed under Section 5 of the Limitation Act is for condonation of delay of 141 days in filing the present appeal.
For the reasons mentioned in the application, same is allowed and delay of 141 days in filing the present appeal is condoned. RSA-1747-2023 (O&M)
1. Present regular second appeal has been filed by the plaintiff against the concurrent findings of the courts below.
2. Parties herein are being addressed as per their original status in the suit.
2.1 Briefly stated, father of the plaintiff, namely, Uttam Chand who died on 02.04.2000, had executed a registered Will dated 07.01.1997 in favour of his wife Jawali, arrayed as defendant No.9 in the suit, and she 1 of 4 ::: Downloaded on - 11-05-2024 03:25:46 ::: Neutral Citation No:=2024:PHHC:064030 RSA No.1749 of 2023 (O&M) -2- 2024:PHHC:064030 become owner of the suit property i.e. 35K-15M and mutation was also sanctioned in her favour. She transferred the suit property in favour of plaintiff vide transfer deed No.14582, dated 23.01.2003. But defendant No.1, namely, Harbans Singh in connivance with other defendants filed a civil suit whereby he intentionally failed to prove Will dated 07.01.1997. In that suit, plaintiff was wrongly got proceeded against ex-parte by the defendants. It was contended that defendants were aware that the plaintiff has become owner for the suit property on the basis of said transfer deed but they intentionally failed to disclose that fact and got passed decree dated 27.09.2006, which is the result of fraud. Plaintiff is the owner and in possession of suit property and defendants have no right to interfere in his possession and to alienate the suit property. Plaintiff had requested the respondents to admit his claim but they refused to do so. Hence, the suit for declaration and permanent injunction against the defendants was filed. 2.2 Upon notice, defendants No.1, 2, 6 and 7 appeared and filed written statement by contending that no Will was ever executed by Uttam Chand in favour of Jawali. Said Will is false and fabricated one. They further took a plea that said Will had been disbelieved by the court in its judgment dated 27.09.2006 (Ex.D2). It was submitted that they were not aware of transfer deed dated 23.01.2003. The property was ancestral and Uttam Chand was not competent to execute said Will. 2.3 Defendants No.3, 4 and 8 also filed separate written statement denying the fact that defendant No.1 in connivance with other defendants 2 of 4 ::: Downloaded on - 11-05-2024 03:25:46 ::: Neutral Citation No:=2024:PHHC:064030 RSA No.1749 of 2023 (O&M) -3- 2024:PHHC:064030 filed a suit and intentionally failed to prove Will dated 07.01.1997. They stated that they have no knowledge about the suit. 2.4 After appreciating the evidence on record, the trial Court, vide judgment and decree dated 06.05.2017, dismissed the suit and the appeal filed against thereof was also dismissed vide judgment and decree dated 22.08.2022. Aggrieved, the plaintiff has approached this Court.
3. I have heard the submissions of learned counsel for the appellant and have gone through the file.
4. The case of the appellant-plaintiff is based on Will dated 07.01.1997 executed in favour of Jawali by her husband Uttam Chand. Plaintiff is the son of Jawali and Uttam Chand. Defendants-respondents are also sons and daughters of Uttam Chand. Plaintiff has not examined any attesting witness of the Will executed in favour of Jawali. Will is a document which is required by law to be attested. A Will can only be proved as per Section 68 of the Indian Evidence Act by examining one of the attesting witness or if he is not alive, then by proving his signature on the document. Since the plaintiff has failed to prove the Will, so any transfer deed executed by Jawali in his favour is of no help to the plaintiff- appellant. Moreover, defendant No.1 earlier filed a suit in which plaintiff as well as Jawali were impleaded as defendants. Said suit was decreed vide judgment dated 27.09.2006 (Ex.D2) in which it has also held that Jawali failed to prove the execution of the Will in her favour. Said judgment has attained finality upto Hon'ble Supreme Court. The court below has rightly 3 of 4 ::: Downloaded on - 11-05-2024 03:25:46 ::: Neutral Citation No:=2024:PHHC:064030 RSA No.1749 of 2023 (O&M) -4- 2024:PHHC:064030 held that in the earlier suit the Will and title deed were in question and the same has attained finality and there is no evidence on the file that same were the result of fraud.
5. So, I am of the view that there is neither any misreading of evidence nor any substantial question of law is involved in the present appeal. The same is without any merit and is dismissed accordingly.
6. Pending application, if any, shall also stand disposed of.
(GURBIR SINGH) JUDGE April 29, 2024 sanjeev Whether speaking/reasoned: Yes/No Whether reportable: Yes/No 4 of 4 ::: Downloaded on - 11-05-2024 03:25:46 :::