Mukhtiar Kaur (Deceased) Th.Lr And ORS v. Guredev Singh & ORS.

-1IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision.03.12.2018 Mukhtiar Kaur and others ...Appellants Vs Gurdev Singh and others

...Respondents

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL

Present:

Mr. Amit Kumar Saini, Advocate for the appellants.

-.- AMIT RAWAL J. (ORAL) C.M. No.16273-C of 2016 For the reasons stated in the application, delay of 23 days in re-filing of the appeal is condoned.

Application is allowed.

C.M. No.16274-C of 2016 For the reasons stated in the application, delay of 8 days in filing of the appeal is condoned.

Application is allowed.

RSA No.6187 of 2016 The appellants-defendants are the disgruntled daughters, who have not been successful in defending the suit for injunction restraining them from interfering into peaceful possession of land measuring 61 kanals 14 marlas bequeathed by Bahadur Singh, their father in favour of respondent No.1 to 3, plaintiffs. The appellants-defendants opposed the suit and relied upon the mutation bearing No.1853 sanctioned on the basis of natural inheritance. Relationship between the parties was admitted but

-2exclusive possession of the plaintiff was emphatically denied. Defendant also denied the ownership of the plaintiff much less execution of the Will dated 14.07.2003 in favour of the plaintiff. On the variance of the parties, trial Court framed the following issues:- "1. Whether Bahadur Singh has executed a Will dated 14.7.2003 in favour of the plaintiffs, if so, its effect? OPP

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

3. Whether the Will dated 14.7.2003 is a forged and fabricated document? OPD

4. Relief."

Mr. Saini, learned counsel appearing on behalf of the appellants-defendants submitted that khasra girdawari Ex.D1 established the claim of daughters, who were living in the same village. The remedy in such situation was to seek partition as the status of the parties to the lis was of co-sharers. The suit for injunction was, thus, liable to be dismissed. The suit simplicitor for injunction in the absence of declaration and possession, as per the settled law, was not maintainable. The trial Court could not have framed the issue of Will and give finding on that.

I am afraid aforementioned arguments of Mr. Saini are not sustainable, for, on perusal of the issued extracted herein above, defendants were alive to the situation and placed onus on Will being

-3fraud and fabricated. It is settled law that where the parties are alive to the situation and have led evidence in the absence of issue, the Court can give finding but the position in the present case is converse. Khasra girdawari, Ex.D2 in favour of one of the appellants-defendants was set aside by the order of the Assistant Collector in 2011, though it has been apprised that the appeal is pending against the same. Be that as it may, the Courts have not accorded the status of owner as the decree does not confer title in favour of plaintiffs but confined it to injunction, being in exclusive possession.

As an upshot of my finding, I do not find any illegality and perversity in the concurrent finding of fact rendered by the Courts below, much less, no substantial question of law arises for determination by this Court. No ground for interference is made out. Resultantly, the second appeal is dismissed.

(AMIT RAWAL) JUDGE December 03, 2018 Pankaj* Whether Reasoned/Speaking Yes Whether Reportable No