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2011 DIGILAW 382 (HP)

Shyam Lal v. Rattan Lal

2011-02-21

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J. This Regular Second Appeal is directed against the judgment and decree dated 20.9.2000 passed by the learned District Judge, Bilaspur in Civil Appeal No.67 of 1992 whereby he dismissed the appeal filed by the appellants (hereinafter referred to as the ‘plaintiffs’) and confirmed the judgment and decree dated 30.5.1992 passed by the learned Sub Judge, 1st Class, Bilaspur in Civil Suit No.48-1 of 1988 dismissing the suit of the plaintiffs. Briefly stated the facts of the case are that both the plaintiffs and the proforma defendant No.3 Sh.Ghaniya were the sons of late Sh.Thakru. Smt.Suharu Devi is their sister. The plaintiffs filed a suit for declaration that they are owner in possession of the suit land and the claim of defendants No.1 and 2, sons of Sh.Ghaniya, defendant No.3 that they had become owners of the suit property on account of the Will executed by Sh.Thakru in their favour is wrong. They also challenged the mutation No.480 dated 22.5.1985 whereby the suit land had been mutated in favour of defendants No.1 and 2 who are the real nephews of the plaintiffs. The case of the defendants is that they have become owners of the suit land on the basis of a registered Will dated 6.11.1981 executed by late Sh.Thakru in their favour. Both the Courts below upheld the validity of the Will and came to the conclusion that the Will, in question, is a legal and valid Will and that the plaintiffs have no right, title or interest in the suit land. This appeal was admitted on the following substantial questions of law:- “3. Whether the Will Ext.DA is not legal and valid for the reason that defendants No1 and 2 have taken active participation for preparation thereof and no legal and valid circumstances has been made out so as to exclude the appellant from the right of their succession? 4. xxx xxx xxx 5. Whether preparation and execution of the Will Ext.DA has not been set up and proved in accordance with provisions of Indian Succession Act and property in suit being ancestral could not be transferred by way of Will?” It would be pertinent to mention that during the course of this appeal, the appellants have also filed a number of applications. The first application being CMP No.839 of 2010 has been filed for framing additional substantial question of law. The first application being CMP No.839 of 2010 has been filed for framing additional substantial question of law. According to the appellants, respondents No.1 and 2 had also filed a suit for injunction against the present appellants in which suit they had set up the Will. Since this suit was withdrawn, the appellants claim that the respondents No.1 and 2 had abandoned their claim over the suit property. CMP No.840 of 2010 has been filed for placing on record the pleadings of the suit filed by the respondents No.1 and 2 and orders passed therein. CMP No.989 of 2010 has been filed by the appellants praying that a Local Commissioner be appointed to demarcate the land. Before dealing with the main matter, I proceed to deal with these applications. Virtually no ground has been set up in the application filed under Order 41 Rule 27, CPC as to why the plea which has now been sought to be raised could not be raised earlier. Admittedly, the suit filed by the respondents No.1 and 2 was withdrawn vide order dated 11.1.1989 and there is no explanation worth the name as to why such a plea was not raised for 21 long years. The application is liable to be dismissed on this ground alone. Even otherwise, I am of the considered view that the plea being set up is totally false and frivolous. The suit filed by the respondents No.1 and 2 was only a suit for injunction and the only prayer made was that a decree for permanent prohibitory injunction be passed in favour of the plaintiffs and against the defendants (present appellants) and the defendants be restrained from interfering in the suit land. There is no bar to withdrawing a suit for injunction and filing a new one as every fresh interference gives a new cause of action. Furthermore, the suit was withdrawn on the statement of the counsel that since another suit titled Sukh Ram and ors. Vs. Rattan Lal & ors. (the suit out of which the present appeal arises) is pending in Court, he did not wish to proceed with the suit and the same was dismissed as withdrawn. There was no admission of the rights of the present appellants nor the respondents No.1 and 2 directly or indirectly abandoned their rights. Vs. Rattan Lal & ors. (the suit out of which the present appeal arises) is pending in Court, he did not wish to proceed with the suit and the same was dismissed as withdrawn. There was no admission of the rights of the present appellants nor the respondents No.1 and 2 directly or indirectly abandoned their rights. The plea raised by the appellants is totally mis-conceived and hence CMP Nos.839 and 840 of 2010 are dismissed. Coming to the CMP No.989 of 2010 filed under Order 26 Rule 9, CPC. Again there is no explanation worth the name as to why such an application was not moved before the learned Trial Court. Even the present appeal was filed in the year 2000 and all these applications have been filed 10 years later when the matter was ripe for hearing. It is more than apparent that these applications have been filed only with a view to delay the inevitable. There is no merit in the application filed by the applicants since such a plea was never raised in either of the courts below. This application is also accordingly dismissed. As far as the appeal is concerned, I have gone through the evidence on record and I find that DW/3, Sh.Bansi Ram has clearly stated that the Will was executed by Sh.Thakru in his presence. In cross-examination, he stated that Sh.Thakru had put his thumb impression on the Will in his presence and thereafter, the other attesting witnesses Sh.Rattan Lal had affixed his thumb impression on the Will and then DW/3 had affixed his signatures on the Will. The Will, in question, is a registered Will. One of the witnesses to the Will has proved the same. Sh.G.D.Verma, learned senior counsel for the appellants submits that the defendants had withheld the best evidence, i.e., Sh.Rattan Lal who was the other attesting witness and he submits that DW/3 is a close relative of the defendants No.1 and 2 and is siding with the defendants. DW/3 is the sonin-law of defendant No.4 Suharu Devi but he is also closely related to the plaintiffs since Suharu Devi is the real sister of the plaintiffs. The main contesting defendants No.1 and 2 are the sons of Ghaniya who was also a brother of Suharu. DW/3 is the sonin-law of defendant No.4 Suharu Devi but he is also closely related to the plaintiffs since Suharu Devi is the real sister of the plaintiffs. The main contesting defendants No.1 and 2 are the sons of Ghaniya who was also a brother of Suharu. Therefore, DW/3 Bansi Ram is closely related to all the parties and his testimony cannot be discarded only on the ground that he is siding with one group in the family. As per the provisions of Section 68 of the Indian Evidence Act, the execution of a Will can be proved by only one witness and Bansi Ram has proved the Will. It has been urged by Sh.G.D.Verma that DW/3 had not stated that Sh.Thakru signed the Will in his presence nor has he identified the thumb impression of Sh.Thakru. No witness can identify the thumb impressions on a document when there are more than one thumb impressions on the same. A witness is a layman and cannot state that a particular thumb impression on the document has been affixed by any particular party. However, Sh.Bansi Ram, DW/3 clearly stated that Sh.Thakru had signed the Will on all the five pages and thereafter, Rattan Lal had affixed his thumb impression on the Will and then DW/3 had put his signatures on the same. DW/2 is the scribe of the Will who has also proved the execution of the Will. I have gone through the Will and in the Will itself, the testator Sh.Thakru had given good explanation for not giving his property to the plaintiffs who are his sons and to Smt.Suharu who is his daughter and he has clearly stated that he wants to bequeath his entire property in favour of his grand sons, i.e., defendants No.1 and 2. Both the Courts below have upheld the Will and I have no reason to set aside such findings. These findings are pure findings of fact and no question of law much less a substantial question of law arises in this appeal. The appeal being devoid of any merit is dismissed with costs assessed at Rs.5000/-.