Paramjit Kaur vs Hardialpreet Singh and Others

Vijender Singh Malik, J.—Paramjit Kaur, the appellant who has challenged the judgment and decree passed by learned Additional Civil Judge [Senior Division], Barnala dated 3.11.2011 and the judgment and decree dated 14.1.2013 passed by learned Additional District Judge, Barnala, is the daughter of the plaintiff, Gurnam Kaur. The bone of contention between the parties has been the land held by Sadhu Singh. Sadhu Singh is said to have three daughters, out of whom two were married with Pritam Singh and one was though, married to Kuldeep Singh, yet was thrown out of her matrimonial home and was living with Gurnam Kaur. Gurnam Kaur has claimed that she is the widow of Sadhu Singh and that the deceased was living with her and her daughter Paramjit Kaur. She has claimed that defendants No. 2 to 4 were living separately from Sadhu Singh and they never served him. It is claimed that defendant Pritam Singh is a clever person and taking advantage of illiteracy of Sadhu Singh, he forged a Will of Sadhu Singh and got entered the mutation of inheritance of Sadhu Singh on the basis of the said Will. It is claimed that Sadhu Singh was not in a position to execute a Will in the year 2001. The Will dated 15.6.2001 is claimed to be a forged and fabricated document, prepared to grab the share of the plaintiff in the property of Sadhu Singh. She has claimed that she and the three daughters of the deceased are the natural heirs of Sadhu Singh. Defendants No. 2 to 4 had set-up the Will dated 15.6.2001 as executed by Sadhu Singh in favour of defendants No. 1 to 3. They have admitted the relationship of Gurnam Kaur and Paramjit Kaur with deceased Sadhu Singh but have claimed that the Will was legal and valid and that on the basis of the same, the property came to defendants No. 1 to 3, the three daughters of Sadhu Singh.

On the pleadings of the parties, the following issues were framed by learned trial court.

Whether Sadhu Singh, since deceased executed a legal and valid will dated 15.6.2001 in favour of defendants No. 1 to 3? OPD

Whether the plaintiff has no locus standi or cause of action to file present suit? OPD

Whether the suit is not maintainable? OPD

Whether plaintiff is estopped by her act and conduct from filing present suit? OPD

Whether suit is bad for non joinder of necessary parties? OPD

Whether suit is bad for misjoinder of necessary parties? OPD

Whether contesting defendants are entitled for special cost of Rs. 20,000/- u/s. 35 of CPC? OPD

Whether the plaintiff is entitled for declaration as prayed for? OPP

Whether plaintiff is entitled for permanent injunction as prayed for? OPP

Relief.

The parties led their respective evidence. Hearing learned counsel for the parties, learned trial court took up issues No. 1, 8 and 9 together. Under issue No. 1, the defendants were held successful in proving that Sadhu Singh deceased executed legal and valid Will dated 15.6.2001 in favour of defendants No. 1 to 3. On the basis of this finding, issues No. 8 and 9 have been decided against the plaintiff holding that she is not entitled to the relief of declaration or permanent injunction as prayed for. The other issues were not pressed at the time of arguments and, hence, the suit failed and was dismissed with costs. Gurnam Kaur died in the meanwhile and Paramjit Kaur claiming her to be the legal heir of Gurnam Kaur preferred an appeal which failed before learned Additional District Judge, Barnala vide judgment and decree dated 14.1.2013.

Learned counsel for the appellant has contended that the plaintiff Gurnam Kaur was an old lady. According to him, her counsel did not properly advise her on account of which she could not lead any evidence in the case. According to him, in the absence of any evidence, the findings have been recorded against the plaintiff and she has been non-suited. He has further submitted that she has filed an application under order 41 rule 27 CPC with a prayer to lead additional evidence. He has, thus, submitted that the application should be allowed and the case be remanded to the trial court for fresh decision after taking the evidence of the plaintiff.

It is not a case of the plaintiff that some document or other piece of evidence could not be produced before the trial court on account of some valid reason. Some specific piece of evidence which could not be produced before the trial court is produced as additional evidence. Here, it is a case where the plaintiff seeks to be allowed to lead her entire evidence. In my opinion, this is not a case for permission to lead additional evidence. This is a case to fill up the lacuna left in the case.

Despite a number of opportunities, no evidence was led by the plaintiff and her evidence was closed by order of the court. An application could be made for permission to lead some evidence before the trial court. The plea taken in the application for additional evidence is moreover, not tenable. It is said that the counsel did not inform her and on that account, the evidence could not be brought. The counsel remained the same in the first appellate court also. Had the counsel misguided or not guided the plaintiff in the matter of leading evidence, he could not have been engaged in filing the appeal. When he has been engaged to file the first appeal, it cannot be believed that the counsel had kept the plaintiff in dark. In the aforesaid circumstances, the appellant is not entitled to lead additional evidence. There being no evidence on behalf of the appellant and sufficient evidence having been led on the file by the defendants to prove the valid execution of the Will dated 15.6.2001, the findings recorded by the courts below cannot be held to be reversible. In these circumstances, I find no questions of law much less substantial questions of law to be arising in this appeal. Consequently, the appeal has no merit and is dismissed in limine.