A second appeal by defendants challenging a judgment where the lower appellate court held them as joint owners as per natural succession, finding the propounded Will unproved due to absence of original and lack of permission for secondary evidence.
Appeal dismissed; finding of Lower Appellate Court regarding joint ownership maintained.
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RSA No.232 of 2009(O & M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.232 of 2009(O & M) Date of Decision:08.10.2010
Jaswinder Singh & Ors.
.....appellants
Versus
Bhan Singh & Ors.
.....respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Tarun Thakur, Advocate for Mr.B.R.Mahajan, Advocate for the appellants
Mr.Ranjit Saini, Advocate for respondent No.1. ********
RAKESH KUMAR GARG J.
CM No.511-C of 2009
For the reasons mentioned in the application, delay of 43 days in filing the appeal is condoned.
CM disposed of.
RSA No.232 of 2009(O & M)
This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court, whereby suit of the plaintiffrespondent was decreed to the extent that parties are joint owners and in joint possession as per natural succession of Gopal Singh.
Brief facts of the case are that the suit land was owned and possessed by Gopal Singh who was father of the parties. It was averred in the plaint that the plaintiff-respondent came in possession of the suit land in a family settlement about 20 years ago and since then he was in
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RSA No.232 of 2009(O & M)
possession of the suit land in open, hostile and uninterrupted manner. It was further submitted that appellants were claiming a Will in their favour which is illegal and a fabricated document. Since defendants No.1 to 3 were threatening to dispossess him, the necessity arose to file the present suit.
Upon notice, defendants No.1 to 3 filed joint written statement raising various preliminary objections. On merits, it was submitted that earlier the suit land was owned and possessed by Gopal Singh. Defendants denied the family settlement or giving of the suit land to plaintiff. Possession of the plaintiff-respondent was also denied. It was further stated that Gopal Singh executed a valid Will in their favour on 09.03.1999 and they have become owners in possession of the suit land on the basis of the aforesaid Will which was registered on 02.11.1999. It was further submitted that earlier plaintiff filed a suit on the basis of family settlement against Gopal Singh which was dismissed and the present suit was barred on the principles of res judicata. Prayer for dismissal of the suit was made. Defendants No. 4 and 6 filed separate written statement admitting the claim of plaintiff.
Replication of the written statement of defendants No.1 to 3 was filed by the plaintiff-respondent controverting the averments made in the written statement and re-asserting the averments of the plaint.
After hearing learned counsel for the parties and considering the evidence on record, the trial Court dismissed the suit of the plaintiff-respondent and held that Will dated 09.03.1999 was a genuine and valid document.
Aggrieved from the aforesaid judgment and decree of the trial Court, plaintiff filed an appeal before the Lower Appellate Court which was partly accepted holding that the parties to the suit are joint owners and in joint possession as per Hindu Succession Act, 1956 and decreed the
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RSA No.232 of 2009(O & M)
suit of the plaintiff-respondent, partly, that he was joint owner in joint possession along other defendants as per natural succession of Gopal Singh. While accepting the appeal the plea of family settlement and adverse possession of the plaintiff-respondent was not accepted. However, Lower Appellate Court also found that the Will dated 09.03.1999 propounded by the appellants was not proved in accordance with law as the appellants failed to produce the original Will on record and even there was no permission to the appellants to prove the Will by way of secondary evidence.
Not satisfied from the aforesaid judgment and decree of the Lower Appellate Court, defendants No.1 to 3 have filed the instant appeal challenging the findings of the Lower Appellate Court on the validity of the Will dated 09.03.1999.
It was for the appellants to prove the Will in question in accordance with law. Admittedly, the original Will is not on the record of the case. It is not the case of the appellants that they have ever sought permission of the court to prove the Will in question by leading secondary evidence. It is well settled that a document can be proved by primary evidence i.e by producing the original document. However, there is an exception to the aforesaid rule i.e.the document can be proved by way of secondary evidence, if such case is made out. However, in the present case, admittedly neither the original document is on the record nor the same was sought to be produced by way of secondary evidence.
In this view of the matter, I find no merit in this appeal. No substantial question of law can be said to be arising. Dismissed.
(RAKESH KUMAR GARG) JUDGE
08.10.2010 neenu
2 issues framed by the court
Whether the Will dated 09.03.1999 is proved when neither the original nor permission for secondary evidence was placed on record.
Whether the appellate court erred in holding the appellants are not joint owners as per natural succession.
1 provisions across 1 enactments
Jaswinder Singh
Bhan Singh
Rakhe Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
