Bahadur Singh and Others vs Baljit Singh and Others

L.N. Mittal, J.

CM No. 2296-C of 2010

For reasons mentioned in the application which is accompanied by affidavit of the counsel, delay of 269 days in refiling the appeal is condoned.

Main appeal.

Plaintiffs-Bahadur Singh etc. having lost in both the Courts below have filed the instant second appeal.

The dispute is regarding inheritance of Sucha Singh since deceased. He had 1/4th share in 67 kanals 10 marlas land. The plaintiffs alleged that Sucha Singh executed Will dated 13.01.1964 in favour of the plaintiffs and accordingly they have become owners in possession of the suit land. On the other hand, defendants set up will dated 16.08.1964 allegedly executed by Sucha Singh in favour of defendant No. 4-Darshan Singh since deceased (now represented by defendants No. 1 to 3). The plaintiffs alleged that defendant No. 4 alleging himself to be attorney of defendant Nos. 5 to 7 and Mahender Singh sold the suit land to defendant Nos. 1 to 3 (sons of defendant No. 4) vide sale deed dated 01.08.1996. The said sale deed has also been challenged by the plaintiffs.

Defendants denied Will dated 13.01.1964 set up by the plaintiffs and rather set up will dated 16.08.1964 allegedly executed by Sucha Singh in favour of defendant No. 4.

Learned Civil Judge (Junior Division), Barnala vide judgment and decree dated 13.10.2004 dismissed the plaintiffs'' suit. First appeal preferred by the plaintiffs stands dismissed by learned Additional District Judge, Barnala vide judgment and decree dated 19.05.2008. Feeling aggrieved, plaintiffs have preferred the instant second appeal.

I have heard Learned Counsel for the parties and perused the case file.

At the outset, it may be noticed that both the Courts below have discarded both the Wills i.e. Will dated 13.01.1964 set up by plaintiffs and Will dated 16.08.1964 set up by defendants. Defendants did produce alleged Will dated 16.08.1964 Ex.D-3 whereas the plaintiffs did not even produce alleged Will dated 13.01.1964 or its copy.

Learned Counsel for the appellants contended that Will dated 13.01.1964 was produced before Revenue Authorities for sanction of mutation and the said Will was destroyed by the Revenue Authorities. It was contended that plaintiffs have examined Sukhdev Singh PW-4 one of the attesting witnesses of the Will to prove the Will and, therefore, the said Will stands proved.

I have carefully considered the aforesaid contention, but find no merit therein. Will dated 13.01.1964 set up by the plaintiffs'' has not seen the light of the day. Its copy has also not been produced. Contents of the Will could be proved only by the Will itself and could not be proved by oral testimony of Sukhdev Singh. Record of mutation is not proved to have been destroyed. Moreover, it is permanent record. Even otherwise, the mutation proceedings were going on as both parties had set up their Wills in the mutation proceedings as well. The matter went in appeal and was remanded to Assistant Collector and was again decided and again went in appeal. Consequently, loss of the Will dated 13.01.1964 from the mutation record is not proved. Even otherwise, the plaintiffs did not obtain permission to lead secondary evidence of the Will, even assuming that the original Will had been destroyed. In addition to it, even copy of the Will have not been proved or produced. In the absence of original Will or copy thereof, the suit of the plaintiffs could not have been decreed because the whole claim of the plaintiffs is based on the Will. Without perusing the contents of the alleged Will, the plaintiffs could not succeed.

Both the Courts below after perusing and appreciating the evidence have recorded concurrent finding of fact. The said finding of fact is based on appreciation of evidence and is not shown to be perverse or illegal warranting interference in second appeal.

Learned Counsel for the appellants also contended that power of attorney executed by defendant Nos. 5 to 7 in favour of defendant No. 4 has not been proved. The contention is completely devoid of merit and frivolous because defendant Nos. 5 to 7 themselves have admitted the same. Consequently, the same was not required to be proved. Even otherwise, the plaintiffs cannot challenge the said power of attorney. Moreover being registered power of attorney, the same was per se admissible unless its execution was denied by the executants thereof. In the instant case, executants of the power of attorney did not deny the execution thereof and rather admitted the same. Consequently, no other evidence was required to prove the same.

No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine.