Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1993 (PNJ)

Kirpal Singh v. Smt. Tarowati And Others

2009-11-17

SABINA

body2009
Judgment Sabina, J. 1. This revision petition is filed under Article 227 of the Constitution of India for setting aside order dated 8.2.2008 (Annexure P6) passed by learned Additional District Judge (Ad-hoc), Fast Track Court, Ambala. 2. Plaintiffs-Kirpal Singh and Mohinder Singh filed a suit for declaration that the plaintiffs along with defendants Nos. 2 to 8 be declared as joint owner in equal shares of the property in dispute and the sale deeds executed by defendant No.1 in favourofdefendantsNos. 9to 11,be declared as illegal, null and void. The suit filed by the plaintiffs was decreed vide judgment and decree dated 26.5.2004 passed by the Civil Judge (Junior Division) Ambala. Defendants Nos. 9 and 10 filed an appeal against the said judgment and decree. In appeal, the appellants-Mam Chand (through LRs) and Om Parkash moved an application under Order 41, Rule 27 of the Code of Civil Procedure for permission to lead additional evidence. Vide the impugned order dated 8.2.2008, the applications for permission to lead additional evidence were allowed. Hence, the present revision petition by plaintiff-Kirpal Singh, 3. Learned counsel for the petitioner has submitted that the applications for permission to lead additional evidence had been filed to fill up the lacuna in the case of the appellants-Mam Chand (through LRs) and Om Parkash. The said appellants had failed to prove the Will executed by Gurdial Singh in favour of defendant No.1 Paramjit Singh. 4. Learned counsel for the respondents Nos. 1 to 8 and 11 has submitted that the additional evidence, now sought to be led by the appellants, was very necessary for the just decision of the case The vendees were bona fide purchasers for consideration. The vendees had purchased the land from defendant No. 1 on the basis of Will as he was owner of the land sold to them by virtue of the Will. 5. After hearing the learned counsel for the parties, 1 am of the opinion that the instant petition deserves to be dismissed. 6. The facts of the case, as noticed by the learned trial Court in the impugned order in paras 2 to 5, reads as under :- "2. The facts of the plaintiffscase are put in a narrow compass a under :- It was pleaded by the plaintiffs that plaintiffs and defendant Nos. 2 to 8 arc related to each other as the brothers and sisters respectively. The facts of the plaintiffscase are put in a narrow compass a under :- It was pleaded by the plaintiffs that plaintiffs and defendant Nos. 2 to 8 arc related to each other as the brothers and sisters respectively. Sh.Gurdial Singh was their father whereas the defendant No. 7 is husband of Shakuntla Devi, deceased sister of the plaintiffs and defendant No. 8 is the daughter of deceased Smt. Shakuntla Devi sister of plaintiffs. It was further stated that Sh.Gurdial Singh son of Sh.Mela Ram, father of the plaintiffs was the owner and in possession of the land in dispute and he died on 19.9.1994 and now the plaintiffs and defendants Nos. 2 to 8 are entitled to inherit his property under the Hindu Succession Act, but the defendant No. 1, who is the son of the plaintiff No. 2 and grand son of Gurdial Singh deceased with ulterior motives in order to grab the entire property in dispute, lodged a false and frivolous FIR against the plaintiffs that the plaintiffs have murdered their father Gurdial Singh. However, the Ld. Sessions Judge acquitted the plaintiffs from that criminal case. 3. It has further pleaded by the plaintiffs that defendant No. 1 wanted to grab the entire property left by deceased Gurdial Singh and he got the land in dispute except house mutated in his name on the basis of forged and fabricated Will and the mutation was sanction in favour of defendant No. 1 without notice to the plaintiffs. On the basis of the alleged mutation, the defendantNo. 1 sold the land except house to defendants No. 9 to 11 by virtue of 3 sale deeds, dt. 29.9.1995 and 4.10.1995 inspite of the facts that the defendant No. 1 was having no right to alienate the suit property. Thus, the Will in question is forged and fabricated document, which is liable to be set aside. 4.In pursuance to the notice issued by the Court, defendant-Paramjit Singh appeared and filed its written statement to the effect that a Civil Suit titled as Smt. Sarin Devi v. Paramjit Singh, is already pending; that Smt. Sarla Devi, Smt. Bali Rani, Smt. Satya Wati (present defendants No. 4 to 6) along with Om Parkash and Neeta Rani (defendants Nos. 4.In pursuance to the notice issued by the Court, defendant-Paramjit Singh appeared and filed its written statement to the effect that a Civil Suit titled as Smt. Sarin Devi v. Paramjit Singh, is already pending; that Smt. Sarla Devi, Smt. Bali Rani, Smt. Satya Wati (present defendants No. 4 to 6) along with Om Parkash and Neeta Rani (defendants Nos. 7 & 8) have filed a suit against Paramjit Singh defendant No. 1, Mohinder Singh and Kirpal Singh and they have set up their claim and they have stated that plaintiffs are disqualified under Section 25 of the Hindu Succession Act, to inherit the property of deceased Gurdial Singh; that suit is liable to be stayed under Section 10 CPC 5. On merits, it was averred by the defendant No. I that no particulars of properties owned by Gurdial Singh s/o Mela Ram have been given. Thus, the plaint is vague and at any rate, the property such as Tractor No. HR O1 - B-8735 owned by Gurdial Singh, nor the loan of Gurdial Singh due to Oriental Bank of Commerce for the liability in respect of the said loan has been at all has been mentioned by the plaintiffs for the reasons best known to them. It is further averred by defendant No. 1 that the answering defendant is the sole and exclusive heir of Sh. Gurdial Singh in view of the Registered Will No. 14 dt. 28.5.1992 being the last valid Will executed by Sh.Gurdial Singh in favour of the answering defendant. The said will has been duly given effect to vide mutation No. 357 of Vill. Alipur and the plaintiffs have no right in the suit property. The sale deeds executed by defendant No. 1 in favour of defendants Nos. 9 to 1 1 are perfectly valid and legal." 7. Thus, the Will dated 28.5.1992 executed by Gurdial Singh in favour of his son Paramjit Singh is a document in dispute between the parties. The scribe as well as the attesting witness of the Will in question had expired before the defendants were to lead their evidence before the trial Court. Now by way of additional evidence, the appellants want to examine the son of the attesting witness to prove the execution of the Will. The Will in question is a registered document. The scribe as well as the attesting witness of the Will in question had expired before the defendants were to lead their evidence before the trial Court. Now by way of additional evidence, the appellants want to examine the son of the attesting witness to prove the execution of the Will. The Will in question is a registered document. Gurdial Singh died on 19.9.1994 and mutation on the basis of the Will was sanctioned on 16.2.1995 in favour of defendant No. 1 Paramjit Singh. The appellants had nothing to gain by not leading the evidence in proof of the Will. However, the Will was required to be proved by defendant No. 1 Paramjit Singh, vendor.The appellants cannot be penalized for the default committed by defendant No. 1 in not leading the relevant evidence in support of the Will. Moreover, if the appellants are allowed to lead additional evidence, lis between the parties can be disposed of on merits and more effectively. The endeavor of the Court is to impart justice between the parties and the Courts are not bound by technicalities or rules of procedure while dispensing justice. The paramount duty of the Court is to do justice. In these circumstances, the impugned order cannot be said to be illegal or without jurisdiction. Learned Additional District Judge has allowed the appellants defendants Nos. 9 and 10 to prove the execution of the Will by calling the son of the allesting witness and also to prove the facts that the attesting witness as well as the Scribe had died. 8. The impugned order does not suffer from any material illegality or irregularity which may warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Dismissed. Revision dismissed.