Subhash Chander vs Om Parkash and Others

Gurdev Singh, J.—This second appeal has been preferred by Subhash Chander, plaintiff-appellant, and the other plaintiffs (Kailash Chand & Kulwant Rai, Respondents No. 15 and 16, respectively)who lost before the Trial Court as well as before the First Appellate Court. They are claiming succession to plot in dispute bearing No. 154 situated in Model Town, Adampur, Tehsil and District Hisar, on the basis of the Will dated 17.7.1985, purported to have been executed in their favour by the original owner, Banwari Lal, who was their grand farther. Plaintiffs pleaded in their plaint that this plot was purchased by Banwari Lal from the New Mandi Township Haryana, Chandigarh and during his life time he had been living with them and they had been serving him. As a reward thereof, this plot was given to them in the year 1985 itself in the presence of many persons and since then they are coming in physical possession thereof. Later on, they came to know that the deceased had executed a Will dated 17.7.1985 thereby bequeathing this plot in their favour. That Will was left by the deceased with his close relation, Mange Ram and they were intimated about that Will by said Mange Ram, vide letter dated 24.1.1995. On the basis of this Will and the oral declaration made in their favour by the deceased, they wanted to raise construction on that plot in the month of March, 1995, upon which the defendants came to the spot and claimed ownership on the basis of the Will executed in their favour by the deceased and prevented them from raising any construction. The same necessitated the filing of the suit for declaration and permanent injunction.

The suit was contested by defendants No. 2 to 4, who filed separate written statements. They contested the claim of the plaintiffs. They pleaded that Om Parkash-defendant No. 1, father of the plaintiffs, filed civil suit No. 726 of 1987 against his brother Khushi Ram and sister Bimla Devi as well as against Raj Kumar and Mahender sons of Khushi Ram. That suit was dismissed, vide judgment and decree dated 29.9.1999 passed by Sub Judge, Hisar. Defendant No. 1 filed appeal against that judgment and decree, which was dismissed by Additional District Judge, Hisar, vide judgment and decree dated 14.1.1995. He preferred second appeal against that judgment, which was dismissed in limine by this Court on 31.5.1995. When the plaintiffs'' father failed to get the plot in dispute, in that litigation, they fabricated the story of execution of the Will. Their suit is not maintainable and is bad for mis-joinder and non-joinder of necessary parties. .

On the pleadings of the parties, following issues were framed by the learned Trial Court:

Whether the plaintiffs are owners in possession of the plot in dispute in equal share as alleged?OPP

If issue No. 1 is proved whether the plaintiffs are entitled to get their name recorded as owners in possession of their plot in the record of HUDA as alleged?OPP

Whether the defendants are liable to be restrained from interfering in the possession of the plaintiffs and also from raising any construction over it and also from alienating any portion of it as alleged?OPD

Whether the plaintiffs have no cause of action to file the present suit?OPD

Whether the suit is not maintainable?OPD

Whether the suit is bad for misjoinder or parties and nonjoinder of necessary parties?OPD

Whether the plaintiffs have not come to the court with clean hands?OPD

Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD

Whether the suit is time barred?OPD 10.Relief.

On the basis of the evidence produced before the trial court and after hearing counsel for both the sides, learned trial court decided Issues No. 1 to 3 and 5 to 7 against the plaintiffs and other issues in their favour and resultantly dismissed their suit, vide judgment and decree dated 17.3.2007. They preferred first appeal against that judgment and decree, which was dismissed by Additional District Judge, Hisar, vide judgment and decree dated 23.7.2009.

I have heard learned Counsel for the plaintiff.

It has been submitted by counsel for the plaintiff that the plaintiffs examined both the attesting witnesses of the Will, who categorically deposed that the Will was duly executed by Banwari Lal in favour of the plaintiffs. The requirements of Section 63 of the Evidence Act,1872, were fulfilled and as such that Will was to be held as a genuine document. He further submitted that the learned trial Court and the First Appellate Court termed this Will as not a genuine document by observing that this Will had seen the light of the day after 10 years. In fact, the Will was kept by the deceased with Mange Ram, who disclosed the factum of the Will to the plaintiffs only in the year 1995 and trustworthy evidence to that effect was produced before the trial court. In these circumstances. It could not have held that this Will was shrouded by suspicious circumstance. No such suspicious circumstance has been established from the evidence of the defendants. Therefore, it is to be held that the findings of the lower courts are perverse. It is the substantial question of law which arises in the present appeal for decision.

Convincing and cogent reasons were recorded by both the courts below in discarding the Will. Mange Ram is closely related to the plaintiff as his son is married to the sister of the plaintiff and as such he was closely related to Banwari Lal, deceased, also. In that eventuality, he must have attended the last rites and ceremonies of Banwari Lal, in the year 1985. It would have been the most natural conduct of this witness to disclose the factum of the Will on that occasion and not after 10 years. No evidence was produced by the plaintiff as to what was the occasion for Mange Ram to write a letter (Ex. PW-2/A) to them. The natural conduct would have to approach the plaintiffs and to hand over the Will to them. The point of time, at which this Will has been propounded by the plaintiffs, is also relevant. The same was being put forward after their father lost in the litigation regarding this very property. It cannot be said that the finding of the courts below, that the Will is not a genuine document, is perverse. The same is based upon correct appreciation of the evidence.

No substantial question of law arises in this appeal.

Accordingly, the same is hereby dismissed. Decree sheet be prepared.