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2007 DIGILAW 1277 (PNJ)

Gurmit Kaur v. Mohinder Singh

2007-07-04

PERMOD KOHLI

body2007
JUDGMENT Permod Kohli, J.(Oral):- This Regular Second Appeal is directed against the judgment and decree dated 17.3.1983 passed by the Addl. District Judge, Gurdaspur dismissing the appeal filed by the present appellant against the judgment and decree dated 5.4.1982 passed by Sub-Judge 1st Class Gurdaspur. 2. Briefly stated facts as emerge from the record are that Santa Singh and Buta Singh were two brothers. Santa Singh had 1/3rd share in the land comprising various khasras situated at village Dhamrai Teh.& District Gurdaspur as recorded in the jamabandi for the year 1978-79. Santa Singh died and his share devolved upon his widow namely Harbans Kaur. Present appellant Gurmit Kaur is daughter of Santa Singh and Harbans Kaur. After the death of Harbans Kaur appellant filed a suit for declaration claiming the share of Santa Singh/Harbans Kaur in the suit land on the strength of the Will dated 14.7.1980. She also sought an injunction against defendant respondent Mohinder Singh, who is son of Buta Singh brother of Santa Singh her father, seeking to restrain him from interfering in her possession over the land. The respondent while disputing the right of the plaintiff appellant claimed himself to be owner of the suit land on the basis of a registered Will dated 7.7.1980, said to be executed by Harbans Kaur in his favour The trial court on the basis of the pleadings of the parties framed following four issues:- 1. Whether Harbans Kaur, deceased executed a valid will dated 14.7. 80 in favour of the plaintiff, if so, its effect? OPO. 2. Whether Harbans Kaur deceased executed a valid Will dated 7.7.80 In favour of defendant, if so, its effect? 3. Whether the plaintiff is entitled to injunction as prayed for? OPO. 4. Relief.” 2. The trial Court accepted the genuineness of the Will dated 7.7.1980 allegedly executed by Harbans Kaur in favour of respondent Mohinder Singh and disbelieved the Will allegedly executed by Harbans Kaur in favour of the plaintiff appellant on 14.7.1980. It is also not in dispute that Will executed in favour of respondent Mohinder Singh is registered one whereas the Will said to be executed in favour of the appellant is unregistered. The trial court accordingly vide its judgment and decree dated 5.4.1982 dismissed the suit. It is also not in dispute that Will executed in favour of respondent Mohinder Singh is registered one whereas the Will said to be executed in favour of the appellant is unregistered. The trial court accordingly vide its judgment and decree dated 5.4.1982 dismissed the suit. Even the possession of the plaintiff over the suit land was not protected by the trial court after returning the fencings that the plaintiff has not been able to prove her possession over the suit property. Plaintiff accordingly preferred an appeal in the court of Addl. District Judge, Gurdaspur by impugning the Judgment dated 5.4.1982 of trial Court. The Appellate Court concurred with the findings recorded by the trial court on the validity/genuineness of the Will in favour of respondent as also the Will claimed to be executed in her favour by the appellant. The appeal was accordingly dismissed. 3. As regards the question of possession is concerned, the trial court recorded in the impugned judgment that possession of the present appellant has been admitted by the other side with regard to some khasra numbers. An undertaking was recorded by counsel for respondent namely H.R. Gupta that possession will be obtained in due course of law. 4. On the basis of this undertaking, it has been recorded that the counsel for the appellant has not pressed the relief of injunction. The appellant has seriously contested this finding of the trial court besides challenging the Judgments and decrees impugned herein. 5. I have heard learned counsel for the parties. Learned counsel for the appellant has tried to argue that the findings regarding the genuineness of the Will in favour of the respondent are not based upon true and correct appreciation of evidence. According to learned counsel the Will is surrounded by suspicious circumstances and for this purpose he has referred to entry in the scribe register, wherein against the thumb impression the name of one Hardip Kaur is mentioned instead of Harbans Kaur. Both the courts below have concurrently held that this is some inadvertent mistake and the execution of the Will has been duly established, and proved by three respectable witnesses of the village. Even handwriting this is a finding of fact which cannot be interfered by this court in second appeal. 6. Both the courts below have concurrently held that this is some inadvertent mistake and the execution of the Will has been duly established, and proved by three respectable witnesses of the village. Even handwriting this is a finding of fact which cannot be interfered by this court in second appeal. 6. I do not find any valid ground to interfere in this finding as regards the genuineness or otherwise of the Will claimed by both the parties. The only question needs consideration is the protection of the possession of the appellant. The first Appellate Court has recorded the finding on the basis of undertaking of counsel for respondent that the respondent will not dispossess the appellant without adopting due course of law. The appellate court on the basis of undertaking should have also bound the respondent and granted injunction. However, it has been recorded that the relief is not pressed by counsel for the appellant. Once the court is of the opinion and comes to the conclusion that appellant is in possession of the suit property the court should protect the possession and allow nobody to take law in his own hands. There is a specific challenge to the statement made by the counsel for the appellant abandoning the relief of injunction. In this view of the matter this appeal is partly allowed and the possession of the appellant over the part of the property as admitted by the counsel for the respondent before the first appellate court, is protected by injunction to the respondent not to dispossess the appellant from the property in her possession without adopting due course of law. In so far as, the other issues raised are concerned, the appeal is dismissed. —————————