Punjab-Haryana High Court
Sukhwinder Singh @ Bindi And Another vs Narinder Kaur And Others on 19 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
116 2024:PHHC:039146
In the High Court of Punjab and Haryana, at Chandigarh
Regular Second Appeal No. 1106 of 2020 (O&M)
Date of Decision: 19.03.2024
Sukhwinder Singh alias Bindi and Another
... Appellant(s)
Versus
Narinder Kaur and Others
... Respondent(s)
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. P.S.Dhaliwal, Advocate
for the appellant(s).
Anil Kshetarpal, J.
CM-3522-C-2020
1. For the reasons stated in the application, the same is allowed
and delay of 89 days in refiling the appeal is condoned.
RSA-1106-2020
2. The Regular Second Appeal in the States of Punjab and
Haryana and Union Territory, Chandigarh is governed by Section 41 of the
Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil
Procedure, 1908, as held by a five Judge Bench of the Supreme Court in
Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC
3. This is the defendants' regular second appeal against the
judgment and decree passed by the First Appellate Court which, in turn, has
reversed the judgment and decree passed by the Trial Court.
4. In order to understand the controversy involved in the present
DEEPAK KUMAR BHARDWAJcase, the relevant facts, in brief, are required to be narrated. Narinder Kuar,
2024:PHHC:039146
daughter-in-law, two grandsons and two granddaughters of Sh.Gurbachan
Singh son of Sh. Mukand Singh filed a suit seeking declaration to the effect
that Sh. Gurbachan Singh's civil death be declared as his whereabouts are
not known for the last 60 years after he went to Delhi. The plaintiffs
claimed that they should be declared owner of 1/4 th share. In substance, the
plaintiffs are the widow and children of late Sh.Kulwant Singh who was the
son of Sh.Gurbachan Singh.
5. The defendants, while contesting the suit, alleged that
Gurbachan Singh had two more brothers, namely Avtar Singh and Dalip
Singh. Subsequently, Dalip Singh sold the 1/3 rd share to Avtar Singh on
14.02.1977. Hence, Avtar Singh became the owner of 2/3 rd share of the
property. Subsequently, there was a family settlement in which
Sh.Gurbachan Singh was allotted property No. 3-C/394, whereas the suit
property fell to the share of Avtar Singh exclusively, who, in turn,
bequeathed the same in favour of defendant No.6 and 7, vide Will dated
06.07.1998. Subsequently, the aforesaid property was sold to various
persons.
6. The Trial Court dismissed the suit on the ground that the
identity of the property has not been clearly established. Except the
statement of PW.1-Jasbir Singh, there is no evidence to prove that
whereabouts of Sh. Gurbachan Singh are not known. The First Appellate
Court, on re-appreciation of the evidence, came to a firm finding that the
identity of the suit property has been established as defendant-Sukhwinder
Singh, in his cross-examination, has admitted the dimensions of the suit
DEEPAK KUMAR BHARDWAJproperty and in the municipal record, Sh.Gurbachan Singh is recorded as co-
2024:PHHC:039146
owner to the extent of half share. He also admitted that a house having
property No. B-7/299 is bounded as East 80' house, again said on West side
808 house of Nirmal Singh, North side 288 street and South side 288 house
of Sukhwinder Singh son of Didar Singh. He also admitted that second
property in dispute is having property Unit No. BVII-315. The First
Appellate Court came to the conclusion that the defendants failed to lead
any evidence to prove that whereabouts of Sh.Gurbachan Singh are known
to anyone for the last 60 years. The First Appellate Court also held that the
defendants have failed to prove any family settlement. Thus, the First
Appellate Court accepted the appeal.
7. Heard the learned counsel representing the appellants at length
and with their able assistance, perused the paper-book.
8. The learned counsel representing the appellants has made the
following submissions:-
i) The plaintiffs have not led sufficient evidence to prove
that whereabouts of Sh.Gurbachan Singh are not known
for the last 60 years. He submits that the solitary
statement of one of the plaintiffs is not sufficient to prove
this fact.
ii) The identity of the suit property is not established.
9. This Court has considered the submissions of the learned
counsel representing the appellants.
10. In this case, the daughter-in-law and grand children of
Sh.Gurbachan Singh have filed a suit for declaration. Jasbir Singh, grandson
of Sh.Gurbachan Singh has stated that whereabouts of his grandfather are
not known for the last 60 years. Sukhdev Singh, while appearing as DW.1
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has stated that Sh.Gurbachan Singh died at Barnala. Similarly, in cross-
examination, he admitted that Sh.Gurbachan Singh left for Delhi about
60/70 years ago and now he is dead. He stated that Sh.Gurbachan Singh
died about 60/70 years back at Delhi in an accident. Thus, there was an
overwhelming evidence including the admission of the witnesses to prove
that Sh.Gurbachan Singh is either dead or his whereabouts are not known for
the last 60/70 years. Hence, there is no error in finding of the First Appellate
Court that his civil death is required to be declared as his whereabouts are
not known for the last more than 70 years to the persons whom it is required
to be known.
11. With reference to the second argument, it shall be noted that the
First Appellate Court has relied upon the admission of the defendants to
identify the properties left behind by Sh.Gurbachan Singh. It is admitted that
there is no evidence to prove the family settlement. In these circumstances,
there is no error in the detailed and elaborated judgment passed by the First
Appellate Court.
12. Keeping in view the aforesaid facts, no ground is made out to
interfere with the concurrent findings of fact arrived at by First Appellate
Court. Hence, the present appeal is dismissed.
13. The miscellaneous application(s) pending, if any, shall stand
disposed of.
(Anil Kshetarpal)
Judge
March 19, 2024
"DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
