Jangsher Singh v. Smt. Bachni & Ors.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Deepak Sharma, Advocate, for the appellant Mr. Yogesh Saini, Advocate, for the respondents L.N. Mittal, J. (Oral) Plaintiff Jangsher Singh having been non-suited by both the courts below has filed this second appeal. Plaintiff – appellant filed suit against Sawan Singh, Sadhu Ram and Gurnam Singh (all since deceased and represented by respondents as their legal representatives) alleging that plaintiff's maternal grandmother Smt. Indi was owner in possession of the suit bara. Plaintiff's mother was the only child of Indi. Indi executed Will dated 23.5.1972 in favour of Regular Second Appeal No. 4084 of 2008 -2- plaintiff and his brothers regarding her entire property including the suit property. Accordingly, on the death of Indi on 28.7.1974, plaintiff and his brothers become owners in possession of the properties of Indi including the suit property. In family settlement, the suit property along with some other houses fell to the share of plaintiff who is owner in possession thereof. Defendants threatened to invade the rights of the plaintiff. Initially defendant no. 2 Sadhu Ram obtained decree dated 27.2.1986 in his favour against Gurnam Singh and subsequently defendant no. 1 Sawan Singh obtained decree dated 11.1.1989 against both defendants no. 2 and 3, thereby also setting aside earlier decree dated 27.2.1986. The plaintiff sought declaration that he is owner in possession of the suit property and that aforesaid decrees dated 27.2.1986 and 11.1.1989 are null and void etc. Defendant no. 1 contested the suit and denied the plaint averments. It was denied that Indi was owner in possession of the suit property. Defendant no. 1 claimed to be owner in possession of the suit property. It was pleaded that defendant no. 2 Sadhu Ram obtained decree dated 27.2.1986 illegally which was set aside vide decree dated 11.1.1989. Defendants no. 2 and 3 did not file any written statement and were ultimately proceeded against ex parte. At subsequent stage even defendant no. 1 was proceeded against ex parte. Learned Civil Judge (Junior Division), Ambala City vide Regular Second Appeal No. 4084 of 2008 -3- judgment and decree dated 14.2.2007 dismissed the plaintiff's suit. First appeal preferred by plaintiff has also been dismissed by learned District Judge, Ambala vide judgment and decree dated 19.4.2008. Feeling aggrieved, plaintiff has filed this second appeal. I have heard learned counsel for the parties and perused the case file. Counsel for the appellant contended that evidence of the plaintiff stands unrebutted and there is no reason to discard the same. It was also contended that Will dated 23.5.1972 executed in favour of plaintiff and his brothers by their maternal grandmother being more than 30 years old document is per se admissible in evidence. On the other hand, counsel for the respondents contended that the alleged Will is not proved because no attesting witness thereof has been examined. It was also argued that the Will was in favour of the plaintiff along with his brothers but brothers of the plaintiff are not party to the suit nor the alleged family settlement had been proved. It was also contended that defendant no. 1 is owner in possession of the suit property and plaintiff is neither owner nor in possession thereof nor his maternal grandmother was owner in possession thereof. I have carefully considered the rival contentions. The original Will being more than 30 years old could be admitted in evidence under Regular Second Appeal No. 4084 of 2008 -4- section 90 of the Evidence Act but the original Will has not seen the light of the day and therefore, the plaintiff is not entitled to the benefit of the said provision. No attesting witness of the Will has been examined to prove its execution in accordance with section 68 of the Evidence Act read with section 63 of the Indian Succession Act, 1925. Thus, the said Will is not proved in accordance with law as rightly held by the courts below. The plaintiff being not party to judgments and decrees dated

27.2.1986 and 11.1.1989 is not bound by the same. Those decrees passed between defendants inter se do not have any adverse effect on the rights of the plaintiff nor the same prove the ownership or possession of any of the defendants over the suit property as there is no evidence in support thereof. Plaintiff's evidence stands unrebutted. According to the plaintiff's evidence, the plaintiff's mother was sole child of plaintiff's maternal grandmother Indi. Consequently, the plaintiff and his brothers and sisters would be sole natural legal heirs of Indi in the absence of the Will set up by the plaintiff. In this view of the matter, the plaintiff would be one of the co-sharers in the suit property if Indi was owner in possession thereof. In the said capacity, the plaintiff would be entitled to maintain the suit even in the absence of his brothers who have not disputed the plaintiff's claim. Moreover, the decree to be passed in the instant lis would not be binding on the plaintiff's brothers who are not party to the lis, but on this ground, the Regular Second Appeal No. 4084 of 2008 -5- plaintiff cannot be non-suited at the instance of defendants who are strangers. Defendants have no locus standi to challenge the family settlement set up by the plaintiff allegedly effected among the plaintiff and his brothers. Plaintiff's evidence that his maternal grandmother was owner in possession of the suit property and now plaintiff is owner in possession thereof stands unrebutted. There is no reason to discard the same. Defendants have not led any evidence to depict that plaintiff is not owner in possession of the suit property or to depict that defendant no. 1 is either owner or in possession thereof. Adverse presumption arises against the defendants for not leading any evidence and also for not themselves appearing in the witness box. None of the defendants has entered into witness box and therefore, adverse inference has to be drawn against them. In view of unrebutted evidence of the plaintiff, he is proved to be owner in possession of the suit property. Finding of the courts below to the contrary is patently perverse and illegal and is based on misreading and misappreciation of evidence. Consequently, substantial question of law to this effect arises for adjudication in this second appeal and the same is answered in favour of the plaintiff-appellant for the reasons recorded hereinbefore. Resultantly, the instant second appeal is allowed. Judgments Regular Second Appeal No. 4084 of 2008 -6- and decrees of the courts below are set aside. Suit filed by the plaintiff is decreed declaring that plaintiff is owner in possession of the suit property and decrees dated 27.2.1986 and 11.1.1989 are null and void and not binding on the plaintiff. However, the parties are left to bear their own costs throughout. August 14, 2012 'dalbir' ( L.N. Mittal ) Judge