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
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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
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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
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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
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