Singh Ram And Another vs Dharambir Singh And Others
2023 Latest Caselaw 1172 P&H

                     103
                                  IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                        CHANDIGARH


                                                                  RSA No.4483 of 2019 (O&M)
                                                                  DATE OF DECISION : 19.01.2023


                     Singh Ram and Another                                               .....Appellants

                                                              versus

                     Dharambir Singh and Others                                         .....Respondents



                     CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                     Present :         Mr. Mandeep Nehra, Advocate for
                                       Mr. Sanpreet Sandhu, Advocate for the appellants
                                             ..

ALKA SARIN, J. (Oral):

The present regular second appeal has been filed by the

plaintiff-appellants against the judgments and decrees dated 31.05.2017

and 26.04.2019 passed by the Trial Court and the First Appellate Court,

respectively dismissing their suit for possession and consequential relief of

permanent injunction.

The brief facts relevant to the present lis are that the plaintiff-

appellants filed a suit for possession with consequential relief of permanent

injunction on the basis that they were owners in possession of the suit

property on the basis of a Will dated 07.09.1988 executed by Nanha Ram.

It was further averred that Nanha Ram died issueless and had willed his

PARKASH CHAND 2023.01.20 11:07 I attest to the accuracy and authenticity of this order/judgment.

entire property in favour of the plaintiff-appellants. However, they found

out that the property is in the illegal and unauthorized possession of the

defendant-respondents and hence the suit was filed.

The defendant-respondents, on notice, appeared and took

preliminary objections qua locus standi, maintainability, estoppel, mis-

joinder and non-joinder of parties. On merits it was pleaded that the Will

was a bogus and fabricated document. It was further averred that Ramdia,

who was father of the defendant-respondents, was in possession of the suit

property since 1965 and had raised construction over it.

On the basis of the pleadings of the parties, the following

issues were framed :

Issue no.1: Whether the plaintiffs are entitled to a

decree for possession as prayed for ? OPP

Issue no.2: If issue no.1 is proved, then, whether

plaintiffs are entitled to decree with consequential

relief of permanent injunction, as prayed for ? OPP

Issue no.3: Whether suit is not maintainable in the

present form ? OPD

Issue no.4: Whether the plaintiffs have no locus-

standi and cause of action to file and maintain the

present suit ? OPD

PARKASH CHAND 2023.01.20 11:07 I attest to the accuracy and authenticity of this order/judgment.

Issue no.5: Whether the plaintiff has not come to the

court with clean hands and has suppressed the true and

material facts from the court ? OPD

Issue no.6: Whether the suit of the plaintiff is

hopelessly time barred ? OPD

Issue no.7: Whether the suit of the plaintiffs is bad for

mis-joinder and non-joinder of necessary parties ?

OPD

Issue no.8: Whether the plaintiffs are estopped by

their own act and conduct to file and maintain the

present suit ? OPD

Issue no.9: Whether the suit is not properly valued for

the purpose of court fee and jurisdiction ? OPD

Issue no.10: Relief.

The sole basis by the plaintiff-appellants for claiming

possession was the Will (Mark-A). None of the attesting witnesses of the

said Will were examined nor was the Will proved in accordance with the

provisions of the Indian Evidence Act, 1872. Rather, the Sarpanch Ranjit

Singh, who was one of the attesting witnesses, stepped into the witness box

as DW3 and deposed that Nanha Ram had never executed a Will and that

he had never stood as a witness. He further deposed that the defendant-

respondents had been in settled possession of the suit property for the last

60-65 years.

PARKASH CHAND 2023.01.20 11:07 I attest to the accuracy and authenticity of this order/judgment.

Learned counsel appearing on behalf of the plaintiff-appellants

has contended that the witness DW3 was won over and hence he deposed

against the plaintiff-appellants. It is contended that the Courts below have

erred in dismissing the suit.

There is not an iota of evidence on the record to prove the Will

Mark-A. The learned counsel appearing on behalf of the plaintiff-

appellants has not been able to explain as to why none of the attesting

witnesses of the Will were produced. Further still, even in the plaint there

is no averment as to how the plaintiff-appellants were related to the

Testator. The lower Appellate Court inter-alia held that :

"The plaintiffs have claimed their ownership over the

property in question on the basis that Nanha Ram was

the owner of the property in question and during the

life time Nanha Ram, a Will was executed by Nanha

Ram in favour of plaintiffs. It is settled preposition of

law that the Will has to be proved in accordance with

the provisions mentioned in Section 63 of the Indian

Succession Act besides the Section 68 of Indian

Evidence Act. Neither the attesting witness has

appeared in the witness box nor the other witnesses

have appeared in the witness box to prove the due

execution of the Will in pursuance of the provision

mentioned in Section 68 of the Indian Evidence Act.

When such is a situation, the plaintiffs have abundantly

failed to prove the Will on the file as per the provision

PARKASH CHAND 2023.01.20 11:07 I attest to the accuracy and authenticity of this order/judgment.

of Section 63 of the Indian Succession Act, besides

under Section 68 of Indian Evidence Act."

Learned counsel for the plaintiff-appellants has been unable to

point out anything on the record to dispel the findings recorded by the

Courts below.

In view of the above, I do not find any illegality or infirmity in

the judgments and decrees passed by both the Courts below. No question of

law much less a substantial question of law arises in the present appeal.

The appeal being devoid of any merit is accordingly dismissed. Pending

applications, if any, also stand disposed off.

                     19.01.2023                                                             (ALKA SARIN)
                     parkash                                                                   JUDGE




                                                 NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

PARKASH CHAND 2023.01.20 11:07 I attest to the accuracy and authenticity of this order/judgment.