Harbans Singh and Others vs Surjit Kaur and Another

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decrees of the trial Court.

Smt. Surjit Kaur filed a suit for declaration to the effect that the decree dated 25.2.1980 in case Pal Singh etc. v. Teja Singh etc. is illegal, null and void and does not bind the plaintiffs as well as sought relief of injunction restraining the defendants, their servants and agents from interfering into their peaceful possession. The case of the plaintiffs is that Kirpa Singh, husband of plaintiff No. 1, was joint owner to the extent of 1/3rd share in the land subject matter of the suit and was in its physical possession. The defendant''s father and brother murdered Kirpa Singh on 16.5.1981 and a case u/s 302/34 of the Indian Penal Code was registered against them. It has further been stated that Smt. Surjit Kaur plaintiff being legally wedded wife of Kirpa Singh besides being his only legal heir to succeed based her claim on the basis of will executed by her husband Kirpa Singh.

This claim was resisted by defendants No. 1 and 2 who denied the plaintiffs relationship with Kirpa Singh as well as doubted the authenticity of the will set up by her. It was further stated that they were in actual physical possession of the suit land.

On the pleadings of the parties, following issues were framed:-

1) Whether Kirpa Singh executed any valid will in favour of plaintiff No.l? O.P.P.

2) Whether the suit land is in possession of plaintiff No. 1 through his tenant plaintiff No. 2? O.P.P.

3) Whether the decree dated 25.2.1980 in suit No. 53 of 18.2.1980 is illegal, null and void, ineffective and is not binding upon the plaintiff? O.P.P.

4) Whether the plain is liable to be rejected under the provisions of Order VII Rule 11 read with Section 35A of CPC? O.P.D. .

5) Whether the plaintiff has no cause of action to file the present suit? O.P.D.

6) Relief.

The trial Court on the basis of evidence decided issues No. 1 and 2 in favour of the plaintiffs. Under issue No. 3, it was held that the decree dated 25.2.1980 is null and void and is not binding upon the plaintiffs. Issues No. 4 and 5 were decided against the defendants. Resultantly. the suit of the plaintiffs was decreed.

Feeling dissatisfied with the judgment and decree of the trial Court, all the defendants filed an appeal. During the pendency of the appeal, Pal Singh as well as Kuldip Singh - the present appellants - filed an application that no service had been effected upon them during the pendency of the suit and so the impugned order deserves to be set aside on this ground alone. The lower appellate Court examined the case on fact as well as on law but found no ground to differ with the conclusion arrived at by the trial Court. On reappraisal of evidence, the Court came to the conclusion that the will set up by Smt. Surjit Kaur is a genuine document which was duly executed by Kirpa Singh in a sound disposing mind. The Court further made reference to the report of Handwriting and Finger Print Expert Dewan K.S. Puri who opined that the disputed thumb-impressions upon the Vakalatnama, written statement and the statement made in Civil Suit No. 53 of 18.2.1980 decided on 25.2.1980 do not tally with the thumb-impressions of Kirpa Singh on the registered will. He thus opined that the specimen thumb-impressions upon the documents forming part of the earlier suit and upon the will are not by the same person. Resultantly, the appeal was also dismissed.

On the motion stage, it was contended by the counsel for the appellants that no notice had been served upon Pal Singh and so ex parte order passed against him does not bind him in any manner. Notice of motion was issued and subsequently the appeal was admitted.

Before adverting to the merit of the controversy, counsel for the appellants has primarily pressed his contention that Pal Singh and Kuldip Singh, in fact, were not served but all the same were proceded ex parte before the trial Court. This being an illegality goes to the root of the case and the impugned judgments of the Courts below deserves to be set aside on this ground alone. Otherwise too the counsel argued that merely for the reasons that thumb-impressions of Kirpa Singh upon Vakalatnama, written statement or upon the statement made by him in the Court even if the same do not tally with his alleged thumb-impressions upon the will is by itself no ground to conclude that decree was procured by the defendants illegally and by putting up some other person in place of Kirpa Singh. In any case, it was upon the plaintiffs to prove the thumb-impressions of Kirpa Singh beyond any doubt. The plaintiffs having failed to discharge the onus in this regard, the judgments of the Courts below deserves to be set aside.

I have heard learned counsel for the appellants as well as perused the impugned judgments of the Courts below. Broad facts have already been noticed. Admittedly, Kirpa Singh was the owner of the land to the extent of 1/3rd which had come to him from his father Nikku. Courts below on the basis of evidence have come to the conclusion that Surjit Kaur is the wife of Kirpa Singh. Both the Courts have come to the conclusion that valid will was duly executed by Kirpa Singh in favour of his wife Surjit Kaur. Not only this, findings of the Courts below are consistent that the impugned decree dated 25.2.1980 was, in fact, not suffered by Kirpa Singh. In view of these proved facts, the necessary inference would be that on the death of Kirpa Singh, Smt. Surjit Kaur alone succeed to the estate of Kirpa Singh being his lawfully wedded wife as well as on the basis of will executed by him. The defendants are none others but sons of Lachman Singh who had not been only accused of murdering Kirpa Singh but were convicted as well. Thus, in view of this position, the Courts below rightly came to the conclusion that the decree set up by the defendants to usurp the rights of the plaintiffs was a fraudulent act solely set up to deprive a legitimate claimant. Even the contention of the appellants that Pal Singh and Kuldip Singh were not properly represented is devoid of any substance. No such plea was ever taken before the trial Court and as a matter of fact the appeal too was filed before the lower appellate Court by all the defendants jointly which has been disposed of on merit. Otherwise too, some irregularity in, the service of one of the defendants who has, infact, identical rights with the remaining defendants cannot be taken as a factor to set aside a well reasoned judgment of the trial Court which has been affirmed by the lower appellate Court as well. No other point has been pressed or claimed. The appeal being devoid of any merit is consequently dismissed. No costs.