Punjab-Haryana High Court
Krishna vs Inder Singh And Anr on 13 April, 2023
Neutral Citation No:=2023:PHHC:050974
CM-3544-C-2023, CM-3543-C-2023
CM-3545-C-2023 in/and RSA-922-2023 2023:PHHC:050974
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(105) CM-3544-C-2023
CM-3543-C-2023
CM-3545-C-2023 in/and
RSA-922-2023
Date of Decision : April 13, 2023
Krishna .. Appellant
Versus
Inder Singh and another .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Gopal Sharma, Advocate, for the applicant-appellant.
HARSIMRAN SINGH SETHI J. (ORAL)
CM-3544-C-2023
As prayed for, the application is allowed.
Delay of 09 days in filing the appeal is condoned.
CM-3543-C-2023
As prayed for, the application is allowed.
Delay of 22 days in re-filing the appeal is condoned.
RSA-922-2023
Present Regular Second Appeal has been filed challenging the
judgment and decree of the trial Court dated 21.12.2016 by which, the suit
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Neutral Citation No:=2023:PHHC:050974
CM-3544-C-2023, CM-3543-C-2023
CM-3545-C-2023 in/and RSA-922-2023 2023:PHHC:050974
filed by the appellant-plaintiff claiming the ownership of the land in
question, was dismissed as well as the judgment of the lower Appellate
Court dated 28.10.2022 by which, the judgment and decree of the trial Court
was upheld.
Learned counsel for the appellant argues that in the present
case, to oust the claim of the appellant-plaintiff, the Will of the deceased
Bhikhu son of Budha in favour of defendant No.1 has been believed by the
Courts below whereas, there was no evidence on record to accept the said
Will dated 28.07.2008.
On being asked to point out the perversity, learned counsel for
the appellant argues that in the Will dated 28.07.2008, though the name of
the executant Bhikhu has been typed but the name of the witnesses have not
been typed but have been handwritten, which shows that there was no
witness present at the time of execution of the said Will and those signatures
of the witnesses have been obtained at a later point of time.
On being asked to point out the evidence to support the said
argument, learned counsel for the appellant has not been able to point out
any evidence that any of the attesting witness has conceded or stated that
they were not present at the time of the signing of the Will either by them or
by the executant Bhikhu. Rather, it is a conceded position that one of the
attesting witness namely Jagdish Sharma i.e. DW-1 has categorically stated
in his statement that he was present at the time of execution of the Will and
the executant Bhikhu signed the Will in his presence and he has also
appended his signatures in the presence of the executant, which evidence
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Neutral Citation No:=2023:PHHC:050974
CM-3544-C-2023, CM-3543-C-2023
CM-3545-C-2023 in/and RSA-922-2023 2023:PHHC:050974
has gone un-rebutted.
Once the said statement of one of the attesting witness is
already on record, the argument being raised by the learned counsel for the
appellant that the finding of the Courts below are perverse, cannot be
accepted and the said argument is accordingly rejected.
Learned counsel for the appellant has also raised an argument
that the beneficiary of the Will i.e. defendant No.1 never stayed with the
grandfather i.e. Bhikhu at any given point of time and there is no
documentary evidence which has come on record that respondent-Inder
Singh was residing with Bhikhu.
On being asked to point out any evidence which has been
brought on record to negativate the said finding, learned counsel for the
appellant has not been able to point out any evidence to the said effect.
Rather, it is also a conceded position that keeping in view the statement of
the witnesses, it has already come on record that since the age of three
years, respondent-Inder Singh was residing with his grandfather Bhikhu i.e.
executant of the Will. Once an evidence has already come on record to
support the finding that Inder Singh was residing with Bhikhu, which fact
has gone un-rebutted, the argument being raised that the oral evidence
should have been corroborated by a documentary evidence, is too much to
ask for and that too in the present Regular Second Appeal.
No other argument was raised.
Keeping in view the above, no ground is made out for
interference called by this Court in the present Regular Second Appeal and
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Neutral Citation No:=2023:PHHC:050974
CM-3544-C-2023, CM-3543-C-2023
CM-3545-C-2023 in/and RSA-922-2023 2023:PHHC:050974
the same is accordingly dismissed.
CM-3545-C-2023
As the main appeal has been dismissed, present application also
stands dismissed.
April 13, 2023 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
Neutral Citation No:=2023:PHHC:050974
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