Punjab-Haryana High Court
Baldev Singh And Others vs Smt. Charago Alias Chand Kaur And ... on 3 February, 2012
Author: Sabina
Bench: Sabina
RSA No. 601 of 1984 -1-
RSA No. 602 of 1984
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) Regular Second Appeal No. 601 of 1984
Date of Decision: 03.02.2012.
Baldev Singh and others .......Appellants
Vs.
Smt. Charago alias Chand Kaur and another ......Respondents
(2) Regular Second Appeal No. 602 of 1984
Baldev Singh and others .......Appellants
Vs.
Smt. Chand Kaur alias Charago and others ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. G.S.Punia, Advocate
for the appellants.
Mr. P.N.Aggarwal, Advocate
for the respondents.
.....
SABINA, J.
Vide this judgment, the above mentioned two appeals would be disposed of as these have arisen out of common judgment and controversy involved in both the appeals is the same.
Baldev Singh, Jaswant Singh and Lakhbir Singh filed the suit against Charago alias Chand Kaur and Samarjit alias Amarjit Kaur for declaration and consequential relief of joint possession.
RSA No. 601 of 1984 -2-RSA No. 602 of 1984
The case of the plaintiffs, as stated in the plaint, in brief, was that Labh Singh was owner of 112 Kanals 10 Marlas of land out of 225 Kanals of land in village Lokhe Kalan as mentioned in the head note of the plaint i.e. ½ share out of the total land. Labh Singh had died issueless on 19.3.1979. Father of the plaintiffs was son of the sister of Labh Singh. Labh Singh had executed a Will in favour of the plaintiffs on 16.3.1979. Defendant No.1 was a Muslim lady and had been employed by Labh Singh as a servant. Defendant No.2 had come to the house of Labh Singh with defendant No.1. Marriage of defendant No.2 was performed by Labh Singh. Mutation No. 2585, entered in favour of the defendants qua property of Labh Singh, was sanctioned without notice to the plaintiffs. The said mutation had no effect on the rights of the plaintiffs. On 29.3.1978, Labh Singh had executed a registered lease deed qua 48 Kanals 3 Marlas of land in favour of Chain Singh for 10 years and possession of the said land was delivered to the lessee.
Defendants, in their written statement, took up preliminary objections that the name of defendant No.1 was Chand Kaur alias Hamida and she was widow of Labh Singh. On merits, the fact that Labh Singh was owner of 112 Kanals 10 Marlas of land was admitted. The death of Labh Singh on 19.3.1979 at village Lokhe Kalan was also admitted. The other contentions in the plaint were denied. It was averred that the Will set-up by the plaintiffs, was a forged document. Defendant No.1 was the widow of Labh Singh and defendant No.2 was his daughter. It was denied that Chain Singh, father of the plaintiffs, RSA No. 601 of 1984 -3- RSA No. 602 of 1984 was natural heir of Labh Singh.
On the pleadings of the parties, following issues were framed by the trial Court in the suit filed by Baldev Singh and others versus Smt. Charago alias Chand Kaur and another:-
"1. Whether Labh Singh executed a valid Will in favour of the plaintiff? OPP
2. Whether Labh Singh executed a lease deed for 10 years in favour of Chain Singh father of the plaintiffs, if so to what effect ? OPP
3. Whether the defendants are widow and daughter of Labh Singh deceased ? OPD
4. Relief."
On 19.3.1980, the following additional issue was framed by the trial court:-
"3(a) Whether Labh Singh was governed by Custom in the matter of marriage and what that custom was? OPD"
Chand Kaur and Amarjit Kaur filed suit for possession against Chain Singh, Baldev Singh, Jaswant Sijngh and Lakhbir Singh qua 112 Kanals 10 Marlas of land being ½ share of land measuring 225 Kanals, described in the head note of the plaint.
The case of the plaintiffs, in brief, was that Labh Singh was owner of the suit land. Labh Singh had died on 18.3.1979. Plaintiff No.1 was the widow of Labh Singh whereas plaintiff No.2 was his daughter. The plaintiffs were the only legal heirs of Labh Singh and were, thus, owners of the suit land. Defendants No. 2 to 4 had filed a suit claiming ownership qua RSA No. 601 of 1984 -4- RSA No. 602 of 1984 the suit land on the basis of Will dated 16.3.1979. Labh Singh had never executed the said Will. The said will was a forged and fabricated document. Labh Singh was in possession of the land qua his share out of the joint khata. The lease deed, alleged to have been executed by Labh Singh in favour of Chain Singh, had no effect on the rights of the plaintiffs.
Defendants, in their written statement, took up preliminary objections, inter alia, that the suit was bad for mis joinder of cause of action and parties. On merits, it was averred that Labh Singh was owner of the suit land and had died on 19.3.1979. Labh Singh had executed a Will in favour of defendants No. 2 to 4 on 16.3.1979. Plaintiff No.1 was a Muslim woman and had been employed by Labh Singh as a servant. Labh Singh had executed a lease deed in favour of Chain Singh on 29.3.1978.
On the pleadings of the parties, following issues were framed by the trial Court in the suit filed by Chand Kaur and another versus Chain Singh and others:-
"1. Whether Labh Singh executed a valid Will in favour of the plaintiff? OPP
2. Whether Labh Singh executed a lease deed for 10 years in favour of Chain Singh father of the plaintiffs, if so to what effect? OPP
3. Whether the defendants are widow and daughter of Labh Singh deceased? OPD
4. Whether the plaintiff is entitled to eject Chain Singh? OPP RSA No. 601 of 1984 -5- RSA No. 602 of 1984
5. Whether the Court has no jurisdiction to hear the suit regarding the ejectment of Chain Singh? OPD
6. Relief."
The trial court while disposing of both the suits vide judgment and decree dated 27.3.1981 held as under:-
"Gleaning and garnering my findings recorded under the heading of foregoing issues, I hereby pass a decree in favour of the defendants Chand Kaur alias Charago and Amarjit Kaur for possession as owners being the heirs of late Labh Singh s/o Hira Singh son of Bela Singh r/o Lokhe Kalan Teh. Zira of land measuring 112 kanals 10 marlas being ½ share of land measuring 225 kanals which also includes the land mentioned in Ex. P.2 the lease deed. In asmuchas the plaint is inseperable and this court has no jurisdiction to order the ejectment of Chain Singh from land mentioned in lease deed Ex. P.2. Therefore, the rest of the claim i.e. for actual possession of the land measuring 48 kanals 3 marlas of the defendants is dismissed and the defendants Chand Kaur and Amarjit Kaur would be at liberty to seek ejectment of Chain Singh from the said land and take possession of the same through the revenue court by filing a separate suit in the revenue court. The claim of the plaintiffs fails, therefore, the suit of the plaintiffs is dismissed. Of course, having regard to the circumstances of the RSA No. 601 of 1984 -6- RSA No. 602 of 1984 case, the parties are left to bear their own costs. The copy of the judgment be placed on the record of the connected case. Decree sheet be prepared and file be consigned to the record room."
Aggrieved by the said judgment and decrees, Baldev Singh and others preferred two appeals. The said appeals were dismissed by the first appellate court on 06.9.1983. Hence, the present two appeals.
After hearing the learned counsel for the parties and going through the record available on the file carefully, I am of the opinion that the instant appeals deserve dismissal.
Learned counsel for the appellants has submitted that although an additional issue No. 3(a) was framed by the trial court on 19.3.1980 in the suit filed by the appellants, yet no finding had been returned by both the courts below on the said issue (reproduced above).
After going through the judgment of the trial court, it is apparent that although specifically issue No.3(a) was not taken up for discussion but the said issue has been duly dealt with by the trial court while deciding issue No.3. The trial court has categorically held that Chand Kaur was residing with Labh Singh since long and, hence, presumption arose that they were married. DW-1 Malhar Singh, Sub Inspector, Department of Food and Supplies, Zira proved the ration card Ex. D1. A perusal of the same reveals that entry had been made in the ration card in the name of Labh Singh with regard to five members in all i.e. four adults and one child. Chand Kaur, while appearing in the witness box as DW-2, has categorically deposed that she had RSA No. 601 of 1984 -7- RSA No. 602 of 1984 performed marriage by way of Chadar ceremony with Labh Singh after partition. After 3/4 years, they were blessed with a daughter. The statement of Chand Kaur in this regard is duly corroborated by DW-3 Lachhman Singh, DW-4 Labh Singh and DW-5 Balbir Singh. Even as per the Will, relied upon by the appellants, Chand Kaur was residing with Labh Singh. Although in the Will, it has been stated that Chand Kaur was working as a servant with Labh Singh, yet the fact remains that Chand Kaur was residing in the same house with Labh Singh. As per Ex. D-3 voter list, Chand Kaur has been described as wife of Labh Singh. Simarji has been described as daughter of Labh Singh. It appears that Chand Kaur adopted Sikh religion at the time of her marriage with Labh Singh and changed her name from Hamida to Chand Kaur. As per Ex. D-2, the date of birth certificate, a daughter was born to Labh Singh on 22.9.1951. There is nothing available on record to the contrary. In these circumstances, the courts below rightly held that Chand Kaur and Simarjit Kaur were widow and daughter of Labh Singh, respectively.
The next question that requires consideration is qua the genuineness of Will (Ex. P-1). The Will (Ex. P-1) was not registered during the lifetime of Labh Singh. The Will was allegedly executed on 16.3.1979 by Labh Singh in the presence of Major Singh and Swaran Singh which was got registered on 04.10.1979. In order to prove the execution of the Will, the propounder to the Will examined the scribe as well as attesting witness to the Will. The propounder of the Will was further required to dispel any suspicious circumstance surrounding the Will. However, the Will in question does not appear to be a RSA No. 601 of 1984 -8- RSA No. 602 of 1984 genuine Will. The Will was allegedly executed on 16.3.1979 whereas Labh Singh had died on 19.3.1979. It was most unnatural for Labh Singh to have executed the Will in favour of grandsons of his sister, although he was being looked after by Chand Kaur and his daughter Simarjit. Labh Singh was resident of village Lokhe Kalan and there was no occasion for him to have executed the Will at Tarn Taran few days prior to his death. Even otherwise, a bare perusal of the Will (Ex. P-1) reveals that it is not a genuine document. The spacing in the lines in the upper part of the Will is more than the lower part of the Will. Further, as per the scribe, the Will (Ex.P-1) was scribed on 16.2.1979 whereas the Will is dated 16.3.1979. In these circumstances, the courts below rightly held that the Will in question was surrounded by suspicious circumstances.
No substantial question of law arises in the appeals which would warrant interference by this court.
Dismissed.
(SABINA) JUDGE February 03, 2012 Gurpreet