Banarsi Lal vs Suresh Chander

R.L. Anand, J.—I am disposing of this appeal which has been directed against the judgment and decree dated 9.1.1999, passed by the court of Additional District Judge, Gurdaspur, at the motion stage itself.

S/Shri Suresh Chander and four others filed a suit for declaration to the effect that they are the owners in possession of the property mentioned in the head note of the plaint with a consequential relief for a decree for permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit property. It was alleged by the plaintiffs that Munshi Ram son of Shri Budda Mal was the owner in possession of the suit land and two houses. Munshi Ram died on 20.8.1990 leaving behind the plaintiffs and the defendants as his legal heirs, plaintiffs No. 1 to 3 and defendant No. 1 being sons, Defendant No. 3 being the daughter and plaintiff No. 4 and defendant No. 2 being the sons of defendant No. 1 Banarsi Lal son of Munshi Ram and of Shri Rajinder Kumar, the predeceased son of Munshi Ram respectively. Shri Munshi Ram executed a will dated 12.4.1990 in favour of the plaintiffs regarding the suit property and on the basis of that will the plaintiffs claim themselves to be the owners in possession of the suit property. However, the defendants having got no right, title or interest in the suit property asserted their right over the suit property.

Notice of the suit was given to the defendants. Defendants No. 1 and 2 were proceeded ex parte as they did not appear despite service. Written statement was filed on behalf of defendant No. 3 who admitted the claim of the plaintiffs.

In order to prove their case, the plaintiffs have examined Suresh Chander PW1, Inderjit PW2 and Joginder Singh PW3 and tendered in evidence copy of the Jamabandi Ex.P.4 for the year 198889 and the copy of death certificate of deceased Munshi Ram as Ex.P.4.

The trial Court believed the Will and passed an ex parte decree for declaration and injunction as prayed for.

The defendants earlier filed an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte judgment and decree but the same was dismissed by the trial Court and also by the High Court vide order dated 3.11.1998.

Still defendants filed the first appeal before the first appellate Court against the ex parte decree which has been dismissed by the first appellate Court vide its judgment and decree dated 9.1.1999 for the reasons given in paras No. 9, 10 and 11 of the judgment. Paras No. 9, 10 and 11 of the judgment of the first appellate Court may be read as under:

"9. The learned counsel for the respondents has argued that the will is testamentary disposal of the property by the executant of the will. The will is scribed to deprive the natural heir to dispose of property according to the wishes of the executant. It is further argued that in the will Ex.P.3 executant has given the reasons as to why the daughter and elder son have been deprived of the property. Valid reason has been given therein. The will is attested by two witnesses. One of the witnesses is Rattan Chand Municipal Commissioner and other is Joginder Singh. It is argued that there is no suspicious circumstances surrounding the present will. So, the decree is legal and valid and there is no merit in the present appeal also.

I have considered that above submissions made on behalf of both the parties. Admittedly, the application under Order 9 Rule 13 C.P.C. has already been dismissed by the learned trial Court, on behalf of the Banarsi Lal, and by Hon''ble Punjab and Haryana High Court, on behalf of Parveen Kumar and Ichhia Devi. No doubt the appellant could avail two remedies i.e. moving an application under Order 9 Rule 13 C.P.C. and filing an appeal against the ex parte order, but when either of two is decided the other will not continue. The authority relied upon by the learned counsel for respondent reported as 1996(1) Civil Court Cases 103(2) referred above is applicable, to the facts of present case.

However, on merits also there is no illegality in the findings recorded by the learned trial Court. There is no suspicious circumstances surrounding the will. There is no requirement of law that the will should be written by the regular scribe. In will Ex.P.3, reason has been specifically given for excluding the natural heirs. The learned trial Court has rightly passed the decree on the evidence available on the file. So, the findings of the learned trial Court are upheld. I find no illegality in the findings recorded by the learned trial Court."

Since, there is no rebuttal to the evidence led by the plaintiffs in support of the Will, and the execution of the will is properly proved, I cannot interfere in the judgment of the first appellate Court. No merit. Dismissed.