RSAN012310f1995 v. Mr Sanj ivGupt aAdvocat e

Chander was arrayedas defendant No BhupSingh lefendant No l l while cont est ingt he suit claim ed his possessionover t he suit propert yOll t he basis of m ot lgagedeed dat ed 21 5 984 agalnsta considerat ion of Rs l 60001 paid t o Ram Chander Ram Chander iefendant No2I claim ed ownershipover t he house in disput eon t he basis of 3 Will dat ed 106 1958 allegedt o have been execut ed by Shiv Lal who happenedt o be his fat hers brot her ln repiicat iont he plaint iffhas ailegedt hat t he propert yin disput ewas owned by one Mam Kauri Luxm i Narain who gift edit t o Sat Narain Jai Narain and Ram Narain Man Kauri widow of of Diwan Singhon 0441963 On t he basis of t he said gift Sat Narain et c becam e owner in possessionof t he propey in disput eand sold it on 29 01984 t o t he piaint iffagainstconsiderat ion I t was allegedt hat on 0741985 defendant Nol byusingforce had dispossessedt he plaint iff from t he house in disput e As t here variance in t he pleadingsof t he part iesissues were st ruck by t he I earned Trial Court and aft er obt aining evidence from bot h t he sides suit of t he plaint iffwas derreecl The I earned First appellat eCourt has givent he followinggenealogyin order t o giverelat ionshipof t he part ies Siria Diwan Harphool Chinrall died issuelessl Ga nga Dut t Ram Chander Sat Narain Jai Narain Ram Narain Shiv LaI Luxm inarain . Rashm i Defendant No2I 10: 58 Scanned True Copy Of Original PHHC,Chandigarh Man Kauri e Mam Kauri JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document ividow 4 436 41r m 0 0 t I Z 2 I a5 Z 81 1 RSA No1231 of 1995 3 irR irkRN Basicallyin t his case bot h plaint iffand defendant No l are t o t he aforesaid fam ily Plaint iff is t he vendee of t he house in disput efrom children of Diwan Singhwho claim s t o have becom e owner of t he said house on t he basis of a giftdeed by Mam Kauri Man Kauri whereas defendant No l claim s his possessionon t he basis of m ort gage deed allegedt o have been execut ed by Ram Chander lefendant No2I who allegedt o have got t he propert yin disput efrom Shiv Lal son of Aft er appreciat ioncf evidence I earnedCouns GangaDut t by way of W below have found t hat Ram Chander has m iserablyfailed t o prove t he Will in his favouI fhe First AppeI I at eCourt has givena cat eooricfinding t n t his regardin para No of t hej udgm entwhich reads as under e Before m e t he appellanthas t aken up t wo point s one aft er t he t he I earned counsel ot her as alt ernat ive t o each t 17er First iy t he I eam ed t rial cout t con7m it t edan error in holding t hat t he will prepoundedby t he defendant s WaS not provecl lt has been arguedt hat t he iviil was fullyprovedt o be a valid will execut ed by Shiv Lal in favour of Ram Chander and as such Ram Chander should have been held t o be t he and Bhup Singh defendant No should have been held t o be in possessionas I nongagee 1 am unable t o persuadem yself t o agree wit h t he t his point I earned counsel for t he appellanton The reasons are as underl 1 BhupSinghhad filed a writ t en st at em ent at a t im e when Ram Chander was not a pany t o t he suit BhupSinghdid not t ake up t he . Rashm i 10: 58 Scanned True Copy Of Original PHHC,Chandigarh plea t hat any will had been execut ed by Shiv Lal in favour of Ram Chander SinghnOW cannot say t hat he did not know Bhup JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 437 41 RSA No1231 of 1995 e4 01 1rkMRRR 1 t hisfact The reason is t hat he him self has claim edt o be an at t est ingwit ness of t his Had t here been any such will exist enceat t he t im e when BhupSinghfiled t he writ t enst at em ent he would have m ade a reference t o t his will in his writ t en st at em ent 2 BhupSinghhas adm it t ed t hat he had t he of t he will at t he t im e when he filedt he writ t enst at em ent Not onlyt his he has allegedt hat at t he t im e of t he t he will had been handed over t o Bhup Singh by Ram Chander furt herhe has st at ed t hat he had t old about t hiswill t o his counsel at t he t im e of draft ing St ill t he writ t en st at em ent This sort of st at em enthe is m akingonlyon t he basis of wit h a view t o assert his point Ot heI wise had t hese fact s been t rue t he t he defendant Bhup Singh counsel for wouldhave m ade a reference of t his will in t he writ t enst at em ent 3 A perusalof t he will would show t hat t he ink used for writ ingt he cont ent s is diHerent t han t he ink used for get t ingt he t hun7b im pressionof Bhup Singh and Mir Singh The will was scribed at a house in Delhi and not at t he seat of som e pet it ionwrit er I t cannotbe said t hat because of t hat reason t he t hum bim pressionswere affixed wit h an pad Once t heyare t o be affixed in t he penink norm allyit would have been affixed wit ht he ink of t he sam e pen wit h which t he bodywas writ t en JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 A perusalof t he will would show t hat t his is 0 I Z 12 I C8 Z 11 1 1 . Rashm i 10: 58 Scanned True Copy Of Original PHHC,Chandigarh r 438 6 1 t X 0 t D I Z 2 t X I 08 W Z d 11 4 m m RSA No1231of1995 5 kkkR not recordedspecificallyas t o whict t hum b is of which at t est ingwit ness This also cast s a doubt on t he validit yof t his will 5 A perusalof t he cont ent s of t he will would show t hat it was draft ed by som e m at ure and well read expert Shiv Lal execut ant of t he will had read onlyupt o 4 t he alleged or 5 prim aryclass This is t he case of t he defendant st hat t he will was writ t enby Shiv in his own I t could not be Lal expect edfrom t his I it t leread villagert o draft such a nice will 6 The point sst at ed above have been well I n discussed by t he I eam ed t rial Coult addit ion t here is anot her m at eria poI nt Shiv Lal had not t houghtall of sudden t o execut e a He allegedly preplannedit le of som ebodyin Karol Bhag when he execut edt he will The wit nesses were all in Delhi at t he house from villageGirdharpurof Haryana The at t est ingwit nesses were called at t hat I n t he circum st ances had t his will been genuineit would have been got scribed from som e pet it ionwrit er and would have been gotregist ered 7 Also t here are as m any as four wit nesses of t his will ExDW51A Norm allyt wo at t est ing wit nesses are required Why t hen So m any2 No abnorm acyhas been 9hown So t he genuinenessof t he will is doubt ful . Rashm i 10: 58 Scanned True Copy Of Original PHHC,Chandigarh 10 I n t he I ightof above discussion it can well be found t hat t he defendant s who are proponders of t he will had failed t o prove t he execut ion and JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 439 RSA No 1231 of 1995 1 V 6 t he validit yof t he will Hence on t he basis of t he will Ram Chander defendant N02 cannot be held t o have becom e t he owner t his house and Bhup Singhcannot claim t o be a under Ram Chander The second pointraised before t he I earned First Appellat e Court was t hat propert yin disput ewas ancest ral but it was brushed aside on t he groundt hat pleaof ancest ral nat ure of t he suit propert ywas not t herefore it cannot be t aken for t he first t aken in t he writ t en st at em ent t im e in appealas it is a pure quest ionof fact regardingwhich no evidence has been I ed I n t he presentappeal iearned counsel for t he appellanthas raised t he quest ion t hat for perm anentinj unct ionwas m aint ainableas plaint iffwas not in possessionof t he propert vin disput e The plaint iffcannot be held t o be t he owner of t he suit propert yon t he basis of sale deed dat ed 291 984 as he was requiredt o prove t he t it le of his predecessorand t he decree for possessioncould not be passedin favour of t he plaint iffagainstdefendant No 1 who was m ort gageein possessionwit houtredem pt ion I n t his regard I earned counsel for responderl No l has subm it t edt hat now t his quest ionhas been raised for t he first t im e before t his Court as t his quest ionwas never raised before t he Couns below rat her t he I earned First Appellat eCoun had speciOcallyrecorded in para No of his j udgm entt hat counsel for t he appellanthas t aken t wo point s one aft er t he ot her as alt ernat ivet o each ot her and bot h t he point swere decided by t he Court s below in which t he point swhich are now soughtt o be agit at edWere not included I n t his regard he has relied upon t wo JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document . Rashm i 10: 58 Scanned True Copy Of Original PHHC,Chandigarh 1 0 t I Z t I o 7 Z 1 1 O 1 1 440 r RSA No1231 of 1995 1117111r a 7 P 0 I D I Z 1 a5 v Z t l 1 i decisions of t he Suprem eCourt in t he cases of Cent ral Bank of I ndia Vs Vrailal Kapurchand Gandhi and anot her AlR 2003 Suprem e Court 3028 and St at e of Maharasht ra Vs Ram das Shrin4I as Navak and anot her AlR 1982 Suprem eCourt 12411 t o cont end t hat t he st at em ent s of fact as t o what t ranspiredat t he hearingrecorded in t he j udgm entof t he Court are conclusive of t he fact s so st at ed and no one can cont radict such st at em ent s by affidavit or ot her evidence I f a pany t hinks t hat t he happeningsin Court have been wronglyrecorded in a j udgm entit is incum bent upon t he part y while t he m at t er is st ill fresh in t he m inds of t he Judgest o call t he at t ent ionof t he very Judgeswho have m ade t he recorcl That is t he onlyway t o have t he record correct ed and if no such st epis t aken t he m at t er m ust necessarilyend t here I t is not opent o a part yt o cont end before t he Appellat eCourt t o t he cont raryas t he Appellat eCourt would not I aunch an enquiryas t o what had t ranspired before t he Court s below The publicpolicyand j udicialdecorum do not perm it The m at t ers of j udicialrecord in t hat sense are unquest ionable Furt her he has reiied upon a decision of t he Suprem eCourt in t he case of Kshit ish Chandra Purkait Vs Sant osh Kum ar Purkait and ot hers AlR 1997 Suprem eCourt 2517 t o cont end t hat a new plea before t he High Court is not perm issibleeven on t he groundt hat it was I egaipieaunt il t he HighCourt is sat isfied t hat t he case involves subst ant ialquest ionof I aw I t is subt nit t ed t hat no subst ant ial quest ionof I aw has been raised by I earned counsel for t he appellantagainstconcurrent findingsof recorded by t he Cou rt s below t o t he effect t hat possessory righton t he basis of a m ort gagedeed havingbeen clainled by defendant Nol . Rashm i 10: 58 Scanned True defendant No2 is of no consequence because defendant No 2 is not Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document RSA No231 of 1995 8 RRRk5k provedt o have t it le over t he propert yin disput erat her t he sale deed in favourof t he plaint iffand t he giftdeed on t he basis of which t he vendors of t he plaint iffhave sot d t he propert yin disput et o him has not been provedt o be illegal I n view of t he aforesaid discussion I do not find any m erit in t he presentappealnor do i find any quest ionof I aw m uch4ess subst ant ial involved in t his appeal and as such t he presentappeal I S hereby dism issed however wit hout any order as t o cost s August 252010 r c4 4 1 RAKESH KUMAR JAI NI JUDGE 441 11 1 1 0 0 4 Z 5 7 Lr 4 o2l 7 Z I lw I l 1J 9 . Rashm i 10: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document