R.S.A. No. 209 of 2006 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 209 of 2006 (O&M)
Date of decision: 24.02.2009
Tejinder Singh and another
....Appellants
Versus
Kuldip Singh and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. R.P.S. Ahluwalia, Advocate,
for the appellants.
Mr. Arun Takhi, Advocate,
for respondent No. 1.
Mr. Surinder Gandhi, Advocate,
for respondents No. 2 and 3.
*****
VINOD K. SHARMA, J (ORAL)
C.M. No. 452-C of 2006
This application under Section 151 of the Code of Civil
Procedure has been moved for condoning the delay of 125 days in
refiling the appeal.
For the reasons stated in the application, C.M. is allowed and
the delay of 125 days in refiling the appeal is coneoned.
C.M. No. 454-C of 2006
This application under Section 5 of the Limitation Act has
been moved for condoning the delay of 616 days in filing the appeal.
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The plea raised for condoning the delay of 616 days in filing
the appeal reads as under: –
“That there is a delay of 616 days in filing the appeal
for the reasons that the counsel for the appellant
could not inform the appellant regarding the
preparation of the certified copy of the decree as his
son was under treatment of PGI, Chandigarh and was
preoccupied with the same and gave the copy of the
decree along with brief to the applicant on 12.2.2004.”
The application does not make out sufficient cause for
condoning the delay of 616 days in filing the appeal.
Consequently, the application is dismissed.
R.S.A. No. 209 of 2006
This regular second appeal is directed against the judgments
and decree dated 20.1.2003 and 14.8.2003 passed by the learned
Courts below vide which the suit filed by the plaintiff/respondent No. 1
for declaration and joint possession stands decreed.
The plaintiff/respondent No. 1 brought a suit on the plea that
Sh. Badri Singh father of the plaintiff owned and possessed land in
dispute. Badri Singh executed ‘Will’ dated 16.11.1970 in favour of his
son i.e. plaintiff/respondent No. 1 and Joginder Singh predecessor in
interest of the appellant.
Predecessor in interest of the appellant and plaintiff, on the
basis of ‘Will’, got mutated the property situated at Ambala. Mutation of
the disputed land was also sought on the basis of ‘Will’, which was
disputed by other legal heirs of Badri Singh.
The mutation being disputed was referred to Assistant
Collector, Grade-1, for adjudication. However, as the plaintiff or
predecessor of the appellant failed to produce ‘Will’ before the revenue
Court, the mutation was sanctioned in favour of all the legal heirs of
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Badri Singh.
The appeal filed by plainitff/respondent No. 1 also failed for
want of ‘Will’ before the revenue Court.
The plaintiff/respondent No. 1 thereafter brought this suit for
declaration and joint possession on the basis of ‘Will’ dated 16.11.1970,
executed by Badri Singh.
The suit was contested by appellants and other defendants.
It was pleaded that the ‘Will’ was not executed by free will of
Badri Singh, and that the ‘Will’ was forged and fabricated document,
surrounded by suspicious circumstances. The plea that the property
was ancestral in the hand of Badri Singh was also raised.
On the pleadings of the parties, the learned trial Court framed
the following issues: –
“1. Whether the plaintiff is in possession as owner
of half of the property in dispute? OPP
2. Whether Badri Singh deceased executed valid
‘Will’ dated 16.11.1970, if so to what effect?
OPP
3. Whether the property under dispute was
ancestral property in the hands of Badri Singh
and if so, whether he could not will away the
same, if so to what effect? OPD
4. Whether the plaintiff has not included the entire
controversial property in this suit, if so, to what
effect? OPP
5. In case Will is proved to have been executed by
Badri Singh, the same was not validly executed
out of his free will and mind, if so, its effect?
OPP
6. Whether the alleged Will was acted upon
between the parties, if so to what effect? OPD
7. Whether the suit is barred by limitation? OPD
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8. Whether the suit is not maintainable in the
present form? OPD
9. Whether the plainitff has a right to own and
possess half share in the entire property? OPP
10. Whether the suit has not been properly filed for
purposes of court fee and jurisdiction, if so,
what should be the correct valuation? OPD
11. Whether the defendants are entitled to special
costs? OPD
12. Relief.”
On appreciation of evidence, brought on record, the learned
trial Court decided issue No. 1 in favour of plaintiff/respondent No. 1 and
held that he was owner in possession of half share of the property in
dispute. ‘Will’ was proved by leading secondary evidence. The learned
Courts recorded a concurrent finding of fact that the ‘Will’ was validly
executed and stood proved as per provisions of Section 63 of the
Succession Act.
The learned Court held that the suspicious circumstances
claimed stood explained. On issue No. 3 the learned trial Court by
taking into consideration the fact that the property was self-acquired
property of Jawahar Singh and, therefore, could not be said to be
ancestral in the hands of Badri Singh, held that the property was not
ancestral in the hands of Badri Nath. Issue No. 3 was decided against
appellants and other defendants. Issue No. 4 was not pressed. Issue
No. 5 was also decided against the appellants and other defendants.
The plea of the appellants and other defendants that the suit
was barred by limitation was also decided against appellants and other
defendants. Issue No. 7 was decided against the appellants and other
defendants being not pressed.
Whereas issue No. 8 was decided against the appellants
being not pressed. On issue No. 9, it was held that the plainitiff in view
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of the ‘Will’ was entitled to half share of the property. Whereas issue
No. 10 was decided against the defendant/appellants Issue No. 11 was
decided against the appellants and other defendants.
The suit was thus decreed.
Appeal also failed.
The learned counsel for the appellants raised the following
substantial questions of law: –
“1. Whether the suit was barred by time?
2. Whether the ‘Will’ was required to be proved as
per the provisions of Indian Succession Act and
as per the provisions of the Indian Evidence
Act?
3. Whether the 'Will' was surrounded by
suspicious circumstances?
4. Whether the property inherited from
father/grandfather is an ancestral property?
5. Whether the Court can club various issues
while deciding the matter in controversy though
framed individually/separately?
6. Whether the impugned judgment is against law
and facts on the file and liable to be ignored?”
The learned counsel for the appellants contends that the suit
for declaration was time barred, as the plaintiff could seek declaration
within three years from arising of cause of action.
The contention of the learned counsel for the appellants is that
the cause of action arose to the plaintiff/respondent No. 1 on 28.11.1977
and, therefore, the suit could not be filed after seven years of the cause
of action in view of Article 58 of the Limitation Act.
However, this plea of the learned counsel for the appellants
cannot be accepted. It is well settled law that mutation confers no title,
therefore, it could not be said that merely wrong entry of mutation could
give cause of action to the plaintiff/respondent No. 1 to challenge the
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‘Will’, when he was in possession as owner.
The plaintiff in the pleadings categorically stated that the
cause of action has accrued to the plaintiff/respondent No. 1 about three
months back when the appellants/defendant and other defendants
without any cause of action have tried to interfere in the possession and
were taking steps to dispose of the property.
The learned Courts below held that suit seeking declaration
regarding title to the property could be filed within a period of 12 years,
and thus the plea of the learned counsel for the appellants that the suit
was time barred cannot be sustained.
The learned counsel for the appellants also contends that the
‘Will’ was not proved as per provisions of the Indian Succession Act and
was surrounded by suspicious circumstances.
This plea of the learned counsel for the appellants also cannot
be accepted. The learned Courts below have recorded a concurrent
finding of fact that the ‘Will’ stood proved by examining the attesting
witnesses, who deposed as per provisions of the Indian Succession Act.
The suspicious circumstances were also duly explained. The
concurrent finding of fact holding that the ‘Will’ was duly proved cannot
be challenged in regular second appeal on the plea that certain
evidence has not been properly appreciated.
The contention of the learned counsel for the appellants that
the property was ancestral in the hands of Badri Singh is also mis-
conceived. The property in the hands of Sh. Jawahar was self-acquired
property and stood inherited by son. It could not be said to be ancestral
in the hands of son i.e. Badri Singh, as contended by the learned
counsel for the appellants.
Other contentions raised by the learned counsel for the
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appellants also deserve to be rejected, as the Court can club the inter-
connected issues, and record finding thereon. It is not necessary that
the Court should answer the issues separately, even though inter-
connected. Once findings on all the issues have been recorded, it
cannot be said that there was any error of law.
The substantial questions of law, framed, are answered
against the appellants.
The appeal is dismissed being time barred as well as on
merits.
(Vinod K. Sharma)
Judge
February 24, 2009
R.S.