Tejinder Singh and Another vs Kuldip Singh and Others

Vinod K. Sharma, J.

CM. No. 452-C of 2006

This application u/s 151 of the CPC has been moved for condoning the delay of 125 days in refiling the appeal.

For the reasons stated in the application, CM. is allowed and the delay of 125 days in refiling the appeal is condoned.

CM. No. 454-C of 2006

This application u/s 5 of the Limitation Act has been moved for condoning the delay of 616 days in filing the appeal. The plea raised for condoning the delay of 616 days in filing the appeal reads as under:

That there is a delay of 616 days in filing the appeal for the reasons that the counsel for the appellant could not inform the appellant regarding the preparation of the certified copy of the decree as his son was under treatment of PGI, Chandigarh and was preoccupied with the same and gave the copy of the decree along with brief to the applicant on 12.2.2004.

The application does not make out sufficient cause for condoning the delay of 616 days in filing the appeal. Consequently, the application is dismissed.

This regular second appeal is directed against the judgments and decree dated 20.1.2003 and 14.8.2003 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent No. 1 for declaration and joint possession stands decreed. The plaintiff/respondent No. 1 brought a suit on the plea that Sh. Badri Singh father of the plaintiff owned and possessed land in dispute. Badri Singh executed ''Will'' dated 16.11.1970 in favour of his son i.e. plaintiff/respondent No. 1 and Joginder Singh predecessor in interest of the appellant. Predecessor in interest of the appellant and plaintiff, on the basis of ''Will'', got mutated the property situated at Ambala. Mutation of the disputed land was also sought on the basis of ''Will'', which was disputed by other legal heirs of Badri Singh. The mutation being disputed was referred to Assistant Collector, Grade-1, for adjudication. However, as the plaintiff or predecessor of the appellant failed to produce ''Will'' before the revenue Court, the mutation was sanctioned in favour of all the legal heirs of Badri Singh.

The appeal filed by plaintiff/respondent No. 1 also failed for want of ''Will'' before the revenue Court. The plaintiff/respondent No. 1 thereafter brought this suit for declaration and joint possession on the basis of ''Will'' dated 16.11.1970, executed by Badri Singh.

The suit was contested by appellants and other defendants. It was pleaded that the ''Will'' was not executed by free will of Badri Singh, and that the ''Will'' was forged and fabricated document, surrounded by suspicious circumstances. The plea that the property was ancestral in the hand of Badri Singh was also raised.

On the pleadings of the parties, the learned trial Court framed the following issues:

Whether the plaintiff is in possession as owner of half of the property in dispute? OPP

Whether Badri Singh deceased executed valid ''Will'' dated 16.11.1970, if so to what effect? OPP

Whether the property under dispute was ancestral property in the hands of Badri Singh and if so, whether he could not will away the same, if so to what effect? OPD

Whether the plaintiff has not included the entire controversial property in this suit, if so, to what effect? OPP

In case Will is proved to have been executed by Badri Singh, the same was not validly executed out of his free will and mind, if so, its effect? OPP

Whether the alleged Will was acted upon between the parties, if so to what effect? OPD

Whether the suit is barred by limitation? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff has a right to own and possess half share in the entire property? OPP

Whether the suit has not been properly filed for purposes of court fee and jurisdiction, if so, what should be the correct valuation? OPD

Whether the defendants are entitled to special costs? OPD

Relief.

On appreciation of evidence, brought on record, the learned trial Court decided issue No. 1 in favour of plaintiff/respondent No. 1 and held that he was owner in possession of half share of the property in dispute. ''Will'' was proved by leading secondary evidence. The learned Courts recorded a concurrent finding of fact that the ''Will'' was validly executed and stood proved as per provisions of Section 63 of the Succession Act.

The learned Court held that the suspicious circumstances claimed stood explained. On issue No. 3 the learned trial Court by taking into consideration the fact that the property was self-acquired property of Jawahar Singh and, therefore, could not be said to be ancestral in the hands of Badri Singh, held that the property was not ancestral in the hands of Badri Nath. Issue No. 3 was decided against appellants and other defendants. Issue No. 4 was not pressed. Issue No. 5 was also decided against the appellants and other defendants. The plea of the appellants and other defendants that the suit was barred by limitation was also decided against appellants and other defendants. Issue No. 7 was decided against the appellants and other defendants being not pressed.

Whereas issue No. 8 was decided against the appellants being not pressed. On issue No. 9, it was held that the plaintiff in view of the ''Will'' was entitled to half share of the property. Whereas issue No. 10 was decided against the defendant/appellants Issue No. 11 was decided against the appellants and other defendants. The suit was thus decreed. Appeal also failed.

The learned Counsel for the appellants raised the following substantial questions of law:

Whether the suit was barred by time?

Whether the ''Will'' was required to be proved as per the provisions of Indian Succession Act and as per the provisions of the Indian Evidence Act?

Whether the ''Will'' was surrounded by suspicious circumstances?

Whether the property inherited from father/grandfather is an ancestral property?

Whether the Court can club various issues while deciding the matter in controversy though

framed individually/separately?

Whether the impugned judgment is against law and facts on the file and liable to be ignored?

The learned Counsel for the appellants contends that the suit for declaration was time barred, as the plaintiff could seek declaration within three years from arising of cause of action.

The contention of the learned Counsel for the appellants is that the cause of action arose to the plaintiff/respondent No. 1 on 28.11.1977 and, therefore, the suit could not be filed after seven years of the cause of action in view of Article 58 of the Limitation Act. However, this plea of the learned Counsel for the appellants cannot be accepted. It is well settled law that mutation confers no title, therefore, it could not be said that merely wrong entry of mutation could give cause of action to the plaintiff/respondent No. 1 to challenge the ''Will'', when he was in possession as owner. The plaintiff in the pleadings categorically stated that the cause of action has accrued to the plaintiff/respondent No. 1 about three months back when the appellants/defendant and other defendants without any cause of action have tried to interfere in the possession and were taking steps to dispose of the property.

The learned Courts below held that suit seeking declaration regarding title to the property could be filed within a period of 12 years, and thus the plea of the learned Counsel for the appellants that the suit was time barred cannot be sustained.

The learned Counsel for the appellants also contends that the ''Will'' was not proved as per provisions of the Indian Succession Act and was surrounded by suspicious circumstances.

This plea of the learned Counsel for the appellants also cannot be accepted. The learned Courts below have recorded a concurrent finding of fact that the ''Will'' stood proved by examining the attesting witnesses, who deposed as per provisions of the Indian Succession Act. The suspicious circumstances were also duly explained. The concurrent finding of fact holding that the ''Will'' was duly proved cannot be challenged in regular second appeal on the plea that certain evidence has not been properly appreciated.

The contention of the learned Counsel for the appellants that the property was ancestral in the hands of Badri Singh is also misconceived. The property in the hands of Sh. Jawahar was self-acquired property and stood inherited by son. It could not be said to be ancestral in the hands of son i.e. Badri Singh, as contended by the learned Counsel for the appellants.

Other contentions raised by the learned Counsel for the appellants also deserve to be rejected, as the Court can club the interconnected issues, and record finding thereon. It is not necessary that the Court should answer the issues separately, even though interconnected. Once findings on all the issues have been recorded, it cannot be said that there was any error of law.

The substantial questions of law, framed, are answered against the appellants. The appeal is dismissed being time barred as well as on merits.