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2010 DIGILAW 620 (PNJ)

Naresh Kumar v. Chinto Devi

2010-01-25

VINOD K.SHARMA

body2010
Judgment VINOD K.SHARMA, J. 1. This regular second appeal is directed against the judgment and decree dated 16.04.2008, passed by the learned Courts below, vide which the suit filed by the respondent/plaintiffs for possession as owners of land measuring 28 kanals, situtated at village Karasan, Tehsil Naraingarh, District ambala, on the basis of inheritance, stands decreed. The respondent/plaintiffs had also challenged the will dated 18.6.1982 propounded by the appellant, to be absolutely wrong, inoperative and a forged document. 2. The suit was contested by the appellant/defendants on the plea, that the deceased-Norata Ram executed a registered will in favour of appellant/defendants, bequeathing the property in their favour for the services rendered by them in his old age. The plea of adverse possession was also raised. The defendants further claimed themselves to be adopted sons of Norata ram. On the pleadings of the parties, the learned trial Court framed the following issues: - "1. Whether the suit land is an ancestral property of the family, if so, its effect? OPP 2. Whether the plaintiffs are entitled to possession of land in suit as owners, as prayed for in the plaint? OPP. 3. Whether the deceased Narota Ram had executed a valid Will dated 18.06.1982 in favour of defendants? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the suit of the plaintiff is time barred? OPD. 6. Whether the plaintiff have not affixed the proper court fee on the plaint? OPD. 7. Whether the plaintiff have no cause of action to file the present suit? OPD. 8. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD.9. Relief. " 3. On appreciation of evidence, the learned Courts below recorded a concurrent finding of fact, that the suit land was not ancestral property in the hands of late Sh. Norata Ram and issue No.1 was decided in favour of the appellant/defendants. On issue No.2, the learned Courts below held, that the plaintiffs being daughters of late Sh. Norata Ram, were entitled to inherit the property, and claim possession. 4. On issue No.3, the learned Courts below held, that the appellant/defendants failed to prove that a valid will dated 18.6.1982 was executed in their favour. On issue No.4, it was held, that plaintiffs being successors of late sh. Norata Ram had the locus standi to maintain the suit. Norata Ram, were entitled to inherit the property, and claim possession. 4. On issue No.3, the learned Courts below held, that the appellant/defendants failed to prove that a valid will dated 18.6.1982 was executed in their favour. On issue No.4, it was held, that plaintiffs being successors of late sh. Norata Ram had the locus standi to maintain the suit. On issue No.5, it was held, that the suit being for possession on the basis of title, was within limitation. Issues No.6, 7 and 8 were decided against the appellant/defendants as not pressed. Consequently, the suit was decreed by the learned Courts below. 5. It is pertinent to mention here, that before the learned lower appellate Court, an application was moved for additional evidence to prove the thumb impression of Norata Ram on the will. The application for additional evidence was dismissed and the appellant/defendants were not allowed to lead additional evidence. Mr. S. S. Dinarpur, learned counsel, appearing on behalf of the appellant, contends, that this appeal raises the following substantial questions of law: - "1. Whether the finding of the learned Courts below holding that the appellant/defendants had failed to prove the will dated 18.6.1982, is outcome of misreading of evidence, therefore, perverse? 2. Whether the finding of the learned lower appellate Court in rejecting the application for additional evidence, is contrary to the established principle of law, thus, liable to be reversed?" 6. In support of the substantial questions of law, the learned counsel for the appellant contended, that the learned Courts below, erred in law in recording a finding that the appellant/defendants have failed to prove the will in accordance with Sec.69 of the Evidence Act. 7. The contention of the learned counsel for the appellant was, that the will was registered and Clerk of the office of Sub Registrar was examined to prove the will. Besides the Clerk, the appellant/defendants also examined son of one of the attesting witnesses, who proved the attestation by his father by admitting his fathers signatures on the will. 8. The contention of the learned counsel for the appellant, therefore, is that once both the attesting witnesses were dead, then the scribe examined by the appellant should have been treated to be the attesting witness. 8. The contention of the learned counsel for the appellant, therefore, is that once both the attesting witnesses were dead, then the scribe examined by the appellant should have been treated to be the attesting witness. When his statement is read with the statement of the son of one of the attesting witnesses, the execution of will stood duly proved as per provisions of Sec.69 of the Evidence Act. The findings recorded by the learned Courts below, therefore, are perverse, on the face of it, and deserve to be reversed. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The learned Courts below have recorded a concurrent finding of fact, that the appellant/defendants failed to prove the will as per provisions of Sec.69 of the Evidence Act. 9. The finding recorded by the learned Courts below is based on the fact, that though attestation by producing son of one of the attesting witnesses stood proved, however, the scribe did not support the execution of will by Norata Ram by stating that he did not know late Sh. Norata Ram. 10. The learned Courts below, therefore, rightly held, that the appellant/defendants failed to prove execution of the will by late Sh. Norata ram. The finding of fact recorded cannot, therefore, be said to be outcome of misreading of evidence or perverse, as contended. The first substantial question of law raised is answered against the appellant. 11. In support of the second substantial question of law, the learned counsel for the appellant contended, that the evidence sought to be led by way of additional evidence, was necessary for proper and just adjudication of the case, therefore, ingredients of Order 41 Rule 27 of the code of Civil Procedure stood fulfilled, and the learned lower appellate Court committed an error in rejecting the application, which deserves to be set aside. The appellant is required to be given an opportunity to prove the thumb impression, of late Sh. Norata Ram on the will. 12. This contention of learned counsel cannot be accepted. The evidence sought to be led by way of additional evidence was within the knowledge of the appellant/defendants. It cannot be said, that this evidence came to their knowledge subsequently. Norata Ram on the will. 12. This contention of learned counsel cannot be accepted. The evidence sought to be led by way of additional evidence was within the knowledge of the appellant/defendants. It cannot be said, that this evidence came to their knowledge subsequently. It is well settled law, that the additional evidence cannot be allowed to fill in the lacuna in case the appellant moved application for additional evidence after the appellant/defendants failed in the learned trial Court. The order passed by the learned lower appellate Court, rejecting the additional evidence, cannot be faulted with. The finding of the learned lower appellate Court also deserves to be upheld in view of the fact, that the appellant/defendants had taken a plea of adoption, as well as adverse possession, which they failed to prove. The second substantial question of law is also answered against the appellant. No merit. Dismissed.