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2009 DIGILAW 1299 (PNJ)

Kartar Singh v. Tasvir Singh

2009-08-03

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgement and decree dated 31.05.2002, rendered by the Court of Civil Judge (Junior Division) Gurdaspur, vide which, it dismissed the suit, and the judgement and decree dated 28.11.2008, rendered by the Court of Additional District Judge, Gurdaspur, vide which, it dismissed the appeal. 2. Sain Dass son of Tej Ram, r/o village Saidhpur, Tehsil and District Gurdaspur, was the original owner in possession of the suit land. He executed a registered Will dated 20.10.1990, in favour of the plaintiffs and defendants Nos. 1 and 2, bequeathing his entire property. It was stated that after the death of Sain Dass, the plaintiffs and defendants Nos. 1 and 2, became the joint owners in possession of the suit land. It was further stated that defendants Nos. 3 to 6, having no right, title or interest in the suit land, got the mutation sanctioned, in respect thereof, in their favour, on the basis of inheritance, at the back of the plaintiffs, and threatened them to alienate the same. They were many a time, asked not to do so, but to no avail. On their final refusal, to desist from their illegal designs, left with no other alternative, a suit for declaration and permanent injunction was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was stated that Sain Dass, died on 19.09.1997. It was denied that he executed the Will, referred to above, in favour of the plaintiffs and defendants Nos. 1 and 2. It was further stated that defendants Nos. 3 and 4, being also the legal heirs of Sain Dass, inherited his estate alongwith the plaintiffs and defendants Nos. 1 and 2. 4. Defendants Nos. 5 and 6, in their written statement, admitted the claim of defendants Nos. 1 and 2. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues were struck -- i) Whether the plaintiffs are entitled to decree for declaration as prayed for - OPP ii) Whether the plaintiffs are entitle to decree for permanent injunction as prayed for - OPP iii) Whether the plaintiffs and defendants Nos. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues were struck -- i) Whether the plaintiffs are entitled to decree for declaration as prayed for - OPP ii) Whether the plaintiffs are entitle to decree for permanent injunction as prayed for - OPP iii) Whether the plaintiffs and defendants Nos. 1 and 2 are owners as prayed for by virtue of Will dated 22.10.1990, if so to what effect - OPP iv) Whether the suit is not maintainable in the present form - OPD v) Relief. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit, holding that Sain Dass, did not execute the aforesaid Will, in sound disposing mind. 7. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was also dismissed by the Court of Additional District Judge, Gurdaspur, vide judgement and decree dated 28.11.2008. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 9. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. 10. The Counsel for the appellants, submitted that the Courts below, were wrong, in coming to the conclusion, that Sain Dass, was not in sound disposing mind, at the time of execution of the will dated 22.10.1990. He further submitted that the execution, validity, and legality of the Will, was proved, by examining an attesting witness and scribe thereof. He further submitted that the Courts below, mis-appreciated and mis-read the evidence, resulting into recording of perverse finding, that no Will, was executed by Sain Dass, in favour of the plaintiffs and defendants Nos. 1 and 2, leading to the dismissal of the suit. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiffs/appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiffs/appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair v. Bhaskar Pillai, (2005)10 SCC 533, Harjeet Singh v. Amrik Singh (2005)12 SCC 270, H.P. Pyarejan v. Dasappa, 2006(1) RCR(Civil) 646 - JT 2006(2) SC 228, and Gurdev Kaur and others v. Kaki and others, 2006(2) RCR(Civil) 561 - (JT 2006(5) SC 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a "third trial on facts" or "one more dice in the gamble." It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The dispute revolved around the execution, legality, and validity of the Will dated 22.10.1990, by Sain Dass. From the judgments of the Courts below, it is evident, that Sain Dass, was aged about 90 years, at the time, he allegedly executed the Will. Subhas Chander, scribe of the will, appeared as PW1, and stated that, he did not know Sain Dass. In his cross-examination, conducted on 23.02.2001, he stated that, he could not identify Sain Dass. He further admitted, during the course of his cross-examination, that it was possible, that in place of Sain Dass, some other person might have thumb marked the Will. He further admitted that he had not written the name on the thumb impression allegedly that of Sain Dass. He further admitted that the thumb impression, had been obtained on the paper, in such a manner, that it might not be comparable. Onkar Singh, is an attesting witness of the Will. During the course of his cross-examination, it was stated by him, that he was the close friend of the plaintiffs/appellants, He further stated that he did not know, as to who executed the Will. Onkar Singh, is an attesting witness of the Will. During the course of his cross-examination, it was stated by him, that he was the close friend of the plaintiffs/appellants, He further stated that he did not know, as to who executed the Will. He further stated, during the course of his cross-examination, that the Will, was not written, in his presence, nor was read-over to Sain Dass. He further stated that, even he did not know, as to who dictated the Will. It was admitted by him, during the course of his cross-examination, that said Sain Dass, was suffering from illness and his orientation was not intact. In other words, he was not having a sound disposing mind, but was in delirium. He further stated, during the course of his cross-examination, that Sain Dass, was not knowing, as to what was being written, on his behalf. Kartar Singh, plaintiff, when appeared, as his own witness, during the course of his cross-examination stated, that they used to carry Sain Dass, executant of the Will, in unconscious condition. Tasvir Singh, defendant No. 1, when appeared as PW7, stated that his father, was not knowing, as to, in which direction, he was going. The Courts below, were, thus, right in holding, that no legal and valid Will, was executed by Sain Dass, as he could not be said to be in sound disposing mind, at the relevant time. The onus lay heavily upon the propounders, to prove the execution, legality, and validity of the Will, but they failed to do so. The Courts below, were, thus, right in discarding the Will, allegedly executed by Sain Dass. The concurrent findings, recorded by the Courts below, on the aforesaid points, being based, on the correct appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference, by this Court. The judgments and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed.