Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 1211 (PNJ)

Om Parkash v. Parkash Chand

2005-11-28

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. Plaintiff Om Parkash (since dead) having remained concurrently unsuccessful before the Courts below has approached this Court through the present Regular Second Appeal. 2. The plaintiff filed a suit for possession with regard to house in question. It was claimed by him that the house in question belonged to his wife Tara Devi who had purchased the same through a registered sale deed dated May 14, 1962 from one Sri Krishan son of Shiv Kumar alias Moji Ram. The aforesaid Tara Devi died on July 4, 1980. It was claimed by the plaintiff that prior to her death, Tara Devi had executed an unregistered Will dated June 30, 1980 Ex.P2/A in his favour, on the basis of the aforesaid Will, the plaintiff claimed the ownership and possession of the property in question. The sole defendant arrayed in the plaint is Parkash Chand son of Om Parkash. 3. At this stage, it may be relevant to notice that the admitted position between the parties is that Om Parkash and Tara Devi had four children, namely, Parkash Chand (defendant), Parkash Hari, Parkash Narain and one Prem Lata. However, only one Parkash Chand was arrayed as defendant. 4. The defendant contested the suit. He admitted the relationship between the parties but denied that his mother Tara Devi had ever executed any Will on June 30, 1980 in favour of Om Parkash, plaintiff. It was further claimed by the defendant that the aforesaid Will had been fabricated by the plaintiff by playing a fraud upon Tara Devi. It was also stated by the defendant that Tara Devi was suffering from severe Ashthma prior to her death and was under treatment and as a matter of fact had died while under the aforesaid treatment. The defendant also set up a plea of adverse possession claiming that he had become owner of the property by a hostile, continuous and uninterrupted possession. 5. A replication was filed by the plaintiff. In the aforesaid replication, for the first time, the plaintiff also pleaded that as a matter of fact the suit property had been purchased by the plaintiff himself with his own funds in the name of his wife Tara Devi and that the defendant had no right, title or interest in the suit property. 6. In the aforesaid replication, for the first time, the plaintiff also pleaded that as a matter of fact the suit property had been purchased by the plaintiff himself with his own funds in the name of his wife Tara Devi and that the defendant had no right, title or interest in the suit property. 6. On the basis of evidence available on the record, the learned trial Court found that the Will, allegedly executed by Tara Devi and relied upon by the plaintiff, was invalid and was surrounded by suspicious circumstances. However, the learned Trial Court found that the defendant was not in adverse possession of the suit property, as claimed by him. On the basis of the aforesaid findings, the learned trial Court found that all the natural heirs were entitled to succeed to the property in equal shares. Consequently, the suit filed by the plaintiff was dismissed. 7. The plaintiff took up the matter in appeal. The learned First Appellate Court re-examined the entire controversy. On the basis of the aforesaid re-appraisal, the learned, First Appellate Court affirmed all the findings recorded by the learned trial Court. However, the learned First Appellate Court found that the defendant had proved that he was in adverse possession of a portion of suit property. Consequently, the appeal filed by the plaintiff was dismissed. 8. The plaintiff has now chosen to approach this Court through the Regular Second Appeal. 9. I have heard Shri Jaspal Singh, the learned Counsel appearing for the plaintiff-appellant and Shri J.B. Sharma, the learned Counsel appearing for the defendant-respondent and with their assistance have also gone through the record of the case. 10. Shri Jaspal Singh, the learned Counsel appearing for the appellant has argued that the judgments of the Courts below suffer from an illegality, inasmuch as, the finding recarded by the Lower Courts that the Will in question was surrounded by suspicious circumstances was not supported by any evidence on the record. It has further argued by the learned Counsel that the Will was not required to be compulsorily registered by any law and, therefore, merely because the Will in question was unregistered could not be treated to be a suspicious circumstance. It has further argued by the learned Counsel that the Will was not required to be compulsorily registered by any law and, therefore, merely because the Will in question was unregistered could not be treated to be a suspicious circumstance. Shri Jaspal Singh has further argued that it was admitted position between the parties that Tara Devi was merely suffering from a severe attack of Ashthama and the aforesaid illness could not be taken to be such which would disentitle her from executing a valid Will. The learned Counsel further relies upon the fact that the Will in question was attested by two witnesses, namely, Parkash Hari one of the sons of the deceased Tara Devi and the plaintiff and Satpal Yadav, a practicing Advocate. On that basis, it has been argued that the findings recorded by the Courts below are wholly perverse and are liable to be set aside. It has further been pointed out by the learned Counsel that the evidence on the record reflected that there was a dispute between Tara Devi and Parkash Chand and that Parkash Chand had rightly been excluded. Lastly, it has been argued by the learned Counsel that there was absolutely no justification for the learned First Appellate Court to give a finding with regard to adverse possession in favour of the defendant. 11. On the other hand, the learned Counsel for the respondent has argued that both the Courts below have concurrently found it is a fact that Will in question was surrounded by suspicious circumstances and cogent reasons have been given for the aforesaid finding. It has been argued that there was nothing on record to show that the aforesaid finding of fact suffers from any infirmity. The learned Counsel has also supported the finding recorded by the learned First Appellate Court that the defendant was shown to be in adverse possession. 12. Before dealing with the rival contentions of the learned Counsel for the parties, it may be relevant to notice that a CM. No. 3859-C of 2005 had been filed by the plaintiff under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence. 12. Before dealing with the rival contentions of the learned Counsel for the parties, it may be relevant to notice that a CM. No. 3859-C of 2005 had been filed by the plaintiff under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence. Along with the aforesaid miscellaneous application, a copy of the translated statement Annexure A 1 purported to have been made by Parkash Chand, defendant on November 2, 2000 in some civil suit pending between him and his brothers has been placed on record. It has been pointed out by the learned Counsel for the appellant that in the aforesaid statement the defendant had admitted that his mother had executed a Will in respect of the house in favour of their father. On that basis, the learned Counsel has argued that the aforesaid statement was liable to be taken on record by way of additional evidence and the said statement duly proved the case of the plaintiff. I am afraid that the aforesaid application of the plaintiff cannot be accepted. Firstly, no basis has been laid in the application to show that the aforesaid statement had been made by Parkash Chand with regard to the house in question. Neither the statement in vernacular nor the certified copy of the said statement has been placed on record. The alleged translation of a statement per se cannot be taken into consideration. Consequently, the said application is dismissed. 13. Having given my thoughtful consideration on merits of the controversy, I do not find that the present appeal has any merit. 14. It is not in dispute that Tara Devi had died on July 4, 1980. While Tara Devi was admitted in hospital, the Will in question is shown to have been executed by her on June 30, 1980 i.e. The said Will is unregistered document. Although, it has been shown to have been written by a regular scribe Umrao Singh who has since died, but nothing has been shown as to at what place the aforesaid Deed Writer had scribed the said Will. Two attesting witnesses of the alleged Will are Parkash Hari, one of the sons of the couple and Anr Satpal Yadav, a practicing Advocate, a colleague of Parkash Hari. Two attesting witnesses of the alleged Will are Parkash Hari, one of the sons of the couple and Anr Satpal Yadav, a practicing Advocate, a colleague of Parkash Hari. The Courts below have duly considered their statements and have come to the conclusion that the said witnesses were not shown to be present at the time of alleged execution of the Will. 15. At this stage another fact which may be relevant to notice is that Om Parkash has died during the pendency of the present appeal. A Civil Miscellaneous No. 4492-C of 1997 was filed by Kusum Lata wife of Parkash Hari to bring herself on record as legal representative of the deceased appellant. She claimed that Om Parkash had executed a registered Will in her favour on September 25, 1991. The aforesaid Kusum Lata is wife of Parkash Hari, who was the one of the attesting witnesses of the Will. It is thus clear that Parkash Hari was trying to exclude the defendant Parkash Chand from the estate of Tara Devi and was interested in getting the property for himself and his wife. The said fact is very clear when Kusum Lata has claimed a registered Will in her favour from Om Parkash. Thus, Parkash Hari who is shown to be one of the attesting witnesses was definitely an interested witness. Even otherwise, no reasons are available on the record why the remaining children of Tara Devi was excluded. 16. Faced with the aforesaid difficulty, the learned Counsel for the appellant states that the remaining children of Tara Devi have not claimed any interest in the suit property. May be that is so, but that does not advance the case of the appellant in any manner. The plaintiff has to stand its own legs and cannot take the benefit of the weakness of the case of the defendant. The plaintiff was required in law to prove the Will in question and to show that the said Will as free from all suspicions. This has not been done. 17. However, a challenge was made by the learned Counsel for the appellant to the finding recorded by the learned First Appellate Court that the defendant had been able to prove his adverse possession. This has not been done. 17. However, a challenge was made by the learned Counsel for the appellant to the finding recorded by the learned First Appellate Court that the defendant had been able to prove his adverse possession. The learned Counsel has argued that the said finding is not legally sustainable in law because mere long possession of a portion of the house in question could not be taken to be such a possession which could be taken to have matured into ownership by way of adverse possession. 18. 1 find force in the aforesaid contention. The learned First Appellate Court without any justification and without giving any reason whatsoever has held that the defendant has been able to prove that he had matured his hostile possession into ownership. In my considered opinion, the aforesaid finding is neither justified nor is borne out from the record of the case. It is well settled principle of law that a mere long possession cannot be treated to be an adverse possession unless and until all other ingredients are satisfied. It is not in dispute that.Parkash Chand is the son of Om Parkash and Tara Devi. If he was occupying the portion of the house and even if he was not on good relations with the parents, his long possession could not be termed to be an adverse possession. Thus, findings recorded by the learned First Appellate Court on issue No. 1-A is liable to be reversed. The same is accordingly reversed. 19. No question of law, much less any substantial question of law, arises in the present appeal justifying the acceptance of this appeal. 20. In view of the aforesaid discussion, I do not find any merit in the present appeal. The judgment of the learned First Appellate Court is modified with regard to findings on issue No. 1-A. However, the suit of the plaintiff shall remain dismissed as ordered by the Courts below.