R.S.A.No. 3514 of 2007 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3514 of 2007 (O&M)
Date of decision: 2.12.2009
Lachhman Singh
......Appellant
Versus
Baggo Bai and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Vinod Khungar, Advocate,
for the appellant.
****
SABINA, J.
Plaintiff -appellant filed a suit for declaration, which was
dismissed by the Additional Civil Judge (Sr.Divn.), Jalalabad vide
judgment and decree dated 1.4.2006. In appeal, the said judgment
and decree were upheld by the Additional District Judge, Ferozepur
vide judgment and decree dated 6.2.2007. Hence, the present
appeal.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 to 4 of its judgment, are as under:-
“2. Briefly stated, the facts of the case of the
R.S.A.No. 3514 of 2007 (O&M) 2plaintiff are that Tara Singh son of Ram Singh (now
deceased) father of the plaintiff, defendants No.2 to 8 and
husband of defendant No.1 was owner in possession of
the following movable and immovable properties:-
i) Land measuring 22 kanals 12 marlas
comprised of Rect. No.11 killa No.23 (8-0), 25(8-
0), Rect. No.95 killa No. 10/2 (6-12) khewat No.21
Khatoni No.29:
ii) Land measuring 40 kanals 10 marlas i.e.
2/3 share of total land measuring 60 kanals 14
marlas comprised of khasra No. 165(0-3), Rect.
No.10 Killa No.20(1-16) 21(8-4) Rect. No.11 Killa
No.13 (8-0), 14(8-0) 15(2-17) 16(7-14), 17(8-0) 18
(8-0), 24(8-0) Khewat No.22 Khatoni No.30 as
well as electric tubewell connection bearing
connection No.B-22/5 BHP; and one tractor make
Eicher bearing registeration No.PB-05/8187:
3. It was further averred that during his life time,
Tara Singh expressed his last desire that after his
death the entire estate of movable and immovable
property referred in para No.1 shall be devolved upon
his two sons i.e. plaintiff and defendant No.2 in equal
shares. Tara Singh made a testimony deposition in his
sound disposing mind without any coercion or pressure
R.S.A.No. 3514 of 2007 (O&M) 3and executed a will/writing dated 29.8.1988 which was
duly read over and explained to Tara Singh who after
admitting the same to be correct and true put his left
thumb impression underneath the said writing/will in the
presence of witnesses namely Gurdial Singh
Lambardar, Chiman Singh Panch, Kala Singh, Balbir
Singh and defendant No.2. They also thumb marked
and signed the above said Will after admitting that the
recital made therein are correct and true. It was further
alleged that before the death of Tara Singh he was
unable to move and was not able to think as he was
mentally upset and was not capable to understand for 3
or 4 years. It was averred that defendant No.2 in
league and connivance with Darshan Singh Lambardar
of village Parbhat Singh Wala and Banta Singh son of
Jaila Singh resident of village Mauzam and Mohinder
Singh son of Diwan Singh resident of village Chak
Khiwa managed to get the sale deed dated 17.6.1997
bearing Waskika No. 1228 allegedly executed by
deceased Tara Singh in his favour of the land
measuring 22 kanals 12 marlas taking undue
advantage of old age and illness of Tara Singh. It was
averred that said sale deed is a result of fraud coercion,
misunderstanding and is without consideration, hence,
R.S.A.No. 3514 of 2007 (O&M) 4the same is illegal, null and void and inoperative qua
the rights of the plaintiff. It was further averred that the
defendants were repeatedly requested to admit his
claim but to no effect. As such plaintiff filed a suit for
declaration with consequential relief of permanent
injunction.
4. Upon notice, the defendants appeared and
filed written statement taking preliminary objections that
the suit is barred by limitation; that the plaintiff has
concealed the material facts from the court; that the
plaintiff has no locus standi to file the present suit; that
the suit is not maintainable and that the proper court
fee has not been affixed. On merits, it was denied that
plaintiff is having any concern with the suit property. It
was pleaded that except the suit property, the family of
the parties have another property bearing Rect. No.65
Killa No.1(8-0), 2(8-0) 3 (8-0) 4(8-0) 8(8-0) situated in
village khiva, the khasra girdawri of which was got
recorded in the name of plaintiff by Tara Singh and
deliberately the said property has not been included in
the plaint. The pedegree table shown in the plaint was
admitted to be correct. It was denied that Tara Singh
deceased has executed a Will. The case setout by the
defendant is that plaintiff never respected his father
R.S.A.No. 3514 of 2007 (O&M) 5and they were always in strained relations with each
other. It was also denied that Tara Singh ever wanted
the property to be divided equally rather the plaintiff
was given 36 kanals of land as mentioned above and
thereafter he had no right in any other property. It was
further denied that any will was executed by Tara Singh
rather the said document was a complaint moved by
the plaintiff in the police station. It was also denied that
three or four years prior to the death of Tara Singh he
was mentally upset and could not understand anything.
It was also denied that sale deed regarding 22 kanals
18 marlas of land was managed in connivance with
Darshan Singh, Banta Singh and Mohinder Singh. It
was denied that any fraud was committed by defendant
No.2 with Tara Singh rather it was pleaded that
defendant No.2 has paid the entire market price to Tara
Singh with which Tara Singh repaid the loan obtained
by him at the marriage of his two daughters. It was
further denied that plaintiff is having any share in the
suit property. It was pleaded that Tara Singh and
plaintiff never enjoyed cordial relations, as such, there
were no questions of execution any will in writing in
favour of the plaintiff. Lastly, it was prayed that the suit
of the plaintiff may be dismissed with costs.”
R.S.A.No. 3514 of 2007 (O&M) 6
On the pleadings of the parties, following issues were
framed by the trial Court:-
1. Whether plaintiff is entitled for declaration as
prayed for? OPP
2. Whether plaintiff is entitled for injunction as
prayed for? OPP
3. Whether the suit is not maintainable? OPD
4. Whether plaintiff has no locus standi to file
the present suit? OPD
4-A Whether the suit of plaintiff is within limitation
or not? OPD
4-B Whether the suit is properly valued for the
purpose of Court fee and jurisdiction? OPP
4-C Whether the plaintiff has approached the court
with clean hands? OPD
5. Relief.
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal deserves to be dismissed.
The plaintiff filed a suit for declaration on the basis of
Ex.P-2 alleged to have been executed in his favour by his father
Tara Singh. The case of the plaintiff was that Ex. P-2 was a will
executed by his father in his favour qua the property in dispute.
However, the Court below, after appreciating the document Ex.P-2,
R.S.A.No. 3514 of 2007 (O&M) 7
have held that the same cannot be treated as a Will. It was merely
an application moved by Lachman Singh himself to the Inspector
Police of Police Station Jalalabad. It was not recorded in Ex.P-2 that
Tara Singh deceased had got it recorded that he admitted the
contention that in the Panchayat it had been settled that after his
death property would be shared by his two sons. Moreover, during
his life time Tara Singh executing the sale deed Ex.P-4 dated
17.6.1997 in favour of Mukhtiar Singh. In these circumstances, the
Courts below rightly held that the plaintiff could not claim any benefit
on the basis of document Ex.P-2.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
December 02, 2009
anita