Hari Ram and Others vs Ajit Singh and Others

Rakesh Kumar Jain, J.

CM No. 7077-C-2014

For the reasons mentioned, the application is allowed and delay of 30 days in refiling the appeal is hereby condoned.

CM stands disposed of.

RSA No. 2978 of 2014 (O&M)

The defendants are in appeal against the judgment and decree of both the Courts below by which suit filed by the plaintiff is decreed to the effect that Sarupa s/o Lakhi was the owner of the land measuring 14 kanal 8 marlas situated in village Marodhi Jatan, District Rohtak. It is further alleged that Sapura left his home about 20 years ago and has never been heard since then by the persons, who would have heard about him, had he been alive and thus he was presumed to have been dead in the eyes of law. Sarupa had a daughter, namely, Chander, married to Maman Singh of village Budha Khera Lathar Tehsil Julana, District Jind and the plaintiff is the son of Sarupa''s daughter Chander, who had already passed away. He further pleaded that Sarupa had gifted his land vide gift deed dated 5.5.1972 to the plaintiff. When the plaintiff approached the revenue authorities to enter the mutation in his favour in respect of the land of Sarupa on the ground that Sarupa has died, in the eyes of law, the revenue authorities did not oblige him and hence he has filed the present suit in which he has also alleged that the defendants are creating unnecessary hurdle by manipulated a false and bogus Will, purported to have been executed by Sarupa, in their favour on 28.7.1969. In reply, defendants No. 1 & 2 filed joint written statement admitting that Sarupa was the owner of the land in dispute and after his death by way of Registered Will dated 28.7.1969 they are in actual cultivating possession. They also denied the theory of gift propounded by the plaintiff alleging it to be a forged document. Defendant No. 7 filed separate written statement alleging that Sarupa had a great affection for Ajit Singh and if Ajit Singh fails to prove his right then he would not be entitled to the property. The plaintiff filed replication to the written statement filed by the defendants and from the pleadings of the parties as many as five issues were framed on 14.5.2005. The plaintiff examined himself as PW1 and Karan Singh Record Keeper as PW2, besides tendering documents. On the other hand, the defendants examined as many as five witnesses and led documentary evidence as well. However, the trial Court decreed the suit on 10.1.2011 and the Appellate Court dismissed the appeal of the defendants on 14.11.2013.

Learned counsel for the appellant has submitted that the Courts below have committed an error in appreciating the evidence on record as the plaintiff has failed to prove the gift deed in his favour and the evidence led by the defendants to prove the Will has been misread. However, he has not denied that none of the attesting witnesses of the Will Ex. D1, namely, Sheo Karan Harijan Nambardar and Mange Ram were examined by the defendants nor any others witness was examined, who could have proved the signatures of the attesting witnesses in case, it is alleged, that the attesting witnesses are no more in this world. The Appellate Court had observed that Will has to be proved in terms of Section 63(c) of the Indian Succession Act, 1923 and Section 68 of the Indian Evidence Act, 1972 by producing at least one attesting witnesses and if attesting witnesses are not available due to some reason much less because of their death, the Will can still be proved in terms of Section 69 of the Indian Evidence Act, 1872 but no effort was made by the defendants to prove the signatures of the attesting witnesses if they had already expired. Thus, it was held that the Will has not been proved and even if the gift deed, as alleged by the plaintiff was executed by the Sarupa is also not proved, he would otherwise succeeded to his property as he is the grandson of Sarupa whereas the defendants are nowhere related to him and are claiming the property in dispute only on the basis of Will which they have failed to prove in accordance with law.

Thus, I do not find any error of misreading of evidence on the part of the Courts below for the purpose of interference in this appeal. Hence, the same is hereby dismissed.