Punjab-Haryana High Court
Om Parkash vs Ganga Jiwan And Ors on 24 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:055163
RSA No.9695 of 2018 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
106 RSA No.9695 of 2018 (O&M)
Reserved on : 18.04.2024
Date of Decision : 24.04.2024
Om Parkash ....Appellant
VERSUS
Ganga Jiwan & Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Ashish Yadav, Advocate for the appellant.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by the
plaintiff-appellant against the judgment and decree dated 04.03.2016 passed
by the Trial Court and the judgment and decree dated 02.07.2018 passed by
the First Appellate Court whereby his suit for declaration and permanent
injunction has been dismissed.
2. The brief facts relevant to the present case are that the plaintiff-
appellant and the defendant-respondents are brothers. The plaintiff-appellant
approached the Trial Court averring that the father of the parties, Pyare Lal,
had during his lifetime distributed the agricultural land measuring 86 Kanals
04 Marlas owned by him in Village Kheri Taluka Patauda equally amongst
his legal heirs and since then the parties to the suit are cultivating their
respective shares as owners. As per the plaintiff-appellant the father of the
integrity of this order/judgment.
2024:PHHC:055163
parties, Pyare Lal, got paralyzed in 2008 and after that he lost his memory
and the defendant-respondents, taking undue benefit of his condition,
procured a false Will in their favour by producing Pyare Lal in the Office of
the Sub-Registrar on 19.11.2008. The plaintiff-appellant challenged the said
Will dated 19.11.2008 as being declared illegal, null and void and not
binding on his rights. The defendant-respondents contested the suit taking
the stand that the plaintiff-appellant had left the house of Pyare Lal and was
living separately since the past 27-28 years. It was also averred that the
marriages of the children of the plaintiff-appellant were solemnized by the
deceased Pyare Lal by incurring expenditure of approximately Rs.20-25 lacs
and Pyare Lal had also spent on the construction of the house of the
plaintiff-appellant. It was further pleaded that during his life time Pyare Lal
had purchased several properties at Village Kheri Taluka Patauda and had
executed sale-deeds in favour of his sons i.e. the plaintiff-appellant and the
defendant-respondents and that the plaintiff-appellant had thereafter
transferred his share in favour of his son by executing a gift deed dated
19.06.2007. The Will dated 19.11.2008 was defended by averring that Pyare
Lal was in a healthy state of physical and mental health when he had
executed and got registered the said Will which was duly read over and
explained to him in the presence of the witnesses and only after
understanding the contents of the said Will to be correct did Pyare Lal put
his thumb-impression on the same. Replication was filed by the plaintiff-
appellant controverting the averments of the written statement and
reiterating the contents of the plaint.
integrity of this order/judgment.
2024:PHHC:055163
3. On the basis of the pleadings of the parties the Trial Court
framed the following issues :
1. Whether the Will dated 19.11.2008 is illegal, null
and void and not binding on the rights of the plaintiff ?
OPP
2. Whether the plaintiff is owner-in-possession of suit
land of para no.1 of the plaint to the extent of 1Ú4 share ?
OPP
3. Whether the plaintiff is entitled for a decree for
permanent injunction, as prayed for ? OPP
4. Whether the suit of the plaintiff in present form is
not maintainable ? OPD
5. Whether the plaintiff has no cause of action and
locus-standi to file this suit ? OPD
6. Whether the plaintiff is estopped from filing the
suit by his own act and conduct ? OPD
7. Whether the plaintiff has concealed the material
facts from the Court ? If so, as to what effect ? OPD
8. Whether the suit of plaintiff is time barred ? OPD
9. Relief.
4. The Trial Court vide judgment and decree dated 04.03.2016
dismissed the suit of the plaintiff-appellant. Aggrieved by the said judgment
and decree dated 04.03.2016 an appeal was preferred by the plaintiff-
appellant which appeal was also dismissed vide judgment and decree dated
02.07.2018. Hence, the present regular second appeal.
integrity of this order/judgment.
2024:PHHC:055163
5. Learned counsel for the plaintiff-appellant has contended that
the impugned judgements and decrees are illegal and erroneous and that the
Courts have wrongly dismissed the suit of the plaintiff-appellant. It was
submitted that the Will allegedly executed by Pyare Lal was surrounded by
suspicious circumstances and that Pyare Lal was not in a sound and
disposing state of mind when the Will was allegedly executed. Pyare Lal
could not differentiate between right and wrong, good and bad and the Will
had been obtained by taking undue benefit of his illness just three days prior
to his death.
6. Heard counsel for the plaintiff-appellant and perused the
paperbook.
7. Both the Courts have reached concurrent findings of fact and
have dismissed the suit of the plaintiff-appellant. It has been found that the
Will dated 19.11.2008 was legal and valid. The plaintiff-appellant has not
produced on the record any medical record of Pyare Lal to show that he had
got paralyzed in 2008 or was ill when the Will was executed. Mere bald oral
assertions were made by the plaintiff-appellant. The Will dated 19.11.2008
was duly proved by the defendant-respondents and the attesting witness. The
First Appellate Court found that "There is not any iota of evidence on the
case file which could show that Pyare Lal had become paralyzed or he had
lost his memory prior to his death. Plaintiff has claimed that Pyare Lal was
getting treatment from Desi Vaid but he has failed to produce any such Vaid.
He had not even dared to produce any neighbourer or his family members to
depose about the said facts". It was further found that "When presence of
Pyare Lal in Tehsil premises on the day of execution of the Will is admitted
integrity of this order/judgment.
2024:PHHC:055163
by the plaintiff and there is no evidence that Pyare Lal was not in sound
disposing mind at that time or had not consented to execute the Will, there is
no reason to disbelieve a registered document i.e. Will in question". Even
before this Court the learned counsel for the plaintiff-appellant has not been
able to show any evidence on the record to prove that Pyare Lal was not well
and was not in a sound state of mind when the Will dated 19.11.2008 was
executed by him. Counsel for the plaintiff-appellant has not been able to
show any material on the record to displace the concurrent findings recorded
by both the Courts. The due and valid execution of the Will dated
19.11.2008 has been established and proved and accepted by both the
Courts. No other point was argued.
8. In view of the above, I do not find any merits in the present
appeal. No question of law, much less any substantial question of law, arises
in the present case. The regular second appeal is accordingly dismissed.
Pending applications, if any, also stand disposed off.
( ALKA SARIN )
24.04.2024 JUDGE
Yogesh Sharma
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
