BALBIR SINGH Vs. SARUP SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by Balbir Singh plaintiff against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiffs was dismissed by the Trial Court and the appeal filed by them was also dismissed by the Additional District Judge.

(2.) AFTER hearing the learned counsel for the plaintiff appellant and perusing the record, I find no illegality in the judgments of the Courts below, which may require interference by this Court in the present Regular Second Appeal. The plaintiffs had filed a suit for possession of 1/5th share of 7/30 share of Jit Singh in the land detailed in the heading of the plaint. It was alleged that Harnam Singh was the father of the parties and that he died prior to 1956 leaving behind five sons and two daughters out of which the plaintiffs and the defendants were alive and that after the death of Harnam Singh, the property was inherited by his five sons out of whom Ajaib Singh died issueless and his 1/5th share was inherited by his remaining four brothers and two sisters in equal shares. It was alleged that Jit Singh (another brother) also died intestate and his share in the suit property was to devolve upon the plaintiffs and defendants in equal shares. However, defendant No. 1 Sarup Singh got mutation in respect of the share of Jit Singh sanctioned in his own name in connivance with the revenue staff. Defendant No. 1 Sarup Singh contested the suit and it was alleged that Balbir Singh plaintiff was not the real brother of the defendants and he had wrongly given his father's name as Harnam Singh because at present he was the adopted son of Tara Singh and he had inherited the properties left by Tara Singh. It was alleged that Jit Singh died issueless and un-married and he had executed a will in his (Sarup Singh's) favour and it was on the basis of the said will that the mutation was rightly sanctioned in his favour.

(3.) AS referred to above, the judgments of the Courts below, are perfectly in accordance with law and no case for interference by this Court in the present Regular Second Appeal is made out, especially when the learned counsel for the plaintiff-appellant could not point out any illegality in the judgments of the Courts below, nor could point out anything from the record to show that there is any misreading of evidence or that any material evidence has not been considered by the Courts below. So far as the adoption of Balbir Singh plaintiff by Tara Singh is concerned, it was found by the learned Additional District Judge that the plaintiff-appellant Balbir Singh himself was the signatory to the adoption deed Exhibit DW3/A and that in the present suit Balbir Singh plaintiff had not challenged the legality of the said adoption deed. It was also found that when Sarup Singh defendant took up the plea regarding adoption of Balbir Singh plaintiff by Tara Singh, Balbir Singh plaintiff in the replication denied the same. However, Balbir Singh plaintiff still did not challenge the legality of the said adoption deed. It was also found by the learned Additional District Judge that Balbir Singh plaintiff had inherited the property left by Tara Singh being the adopted son of Tara Singh and as such Balbir Singh plaintiff was estopped from challenging his adoption by Tara Singh after having derived the benefit of adoption. It was found by the learned Additional District Judge that Balbir Singh plaintiff while appearing in the witness box had not uttered a single word against the adoption deed vide which he was adopted by Tara Singh. With regard to the Will Exhibit DW6/1 allegedly executed by Jit Singh in favour of Sarup Singh, it was found by the learned Additional District Judge that the due execution of the said Will was duly proved on the record by DW6 Hem Ram and DW7 Baldev Singh, attesting witnesses, besides Gupt Ram Sharma, who had scribed the said Will. It was found that from the testimony of these witnesses, the due execution of the Will was duly proved. It was also found that there was nothing suspicious in case Jit Singh had executed the Will in favour of his brother Sarup Singh considering that Balbir Singh plaintiff had already gone in adoption to Tara Singh and that Ram Singh, another brother of Jit Singh, had also inherited the property of Tara Singh by way of Will whereas the sisters of Jit Singh were already married whereas another brother, namely, Ajaib Singh had already expired. In my opinion, these findings given by the learned Additional District Judge, regarding adoption and Will are in accordance with law and no fault could be found with the same. The authorities 1998(2) Civil Court Cases 421 (SC) : 1998(2) RCR(Civil) 390 (SC); Gurdial Kaur v. Kartar Kaur, 1977 P.L.J. 54 SC; Smt. Jaswant Kaur v. Smt. Amrit Kaur, 1995(3) Punjab Law Reporter 177 : 1995(3) RRR 31 (P&H); Babru son of Chet Ram v. Basakha Singh and others and 2001(3) Punjab Law Reporter 755 : 2001(4) RCR(Civil) 278 (P&H); Ram Jiwan v. Heera Lal, relied upon by the learned counsel for the plaintiff- appellant, in my opinion, would have no application to the facts of the present case. At no point of time, the plaintiff-appellant had claimed the suit property to be ancestral before the lower Appellate Court and in this view of the matter, the appellant cannot be allowed to urge in this Regular Second Appeal that the properly in question was ancestral and as such Jit Singh was not competent to Will away the same in favour of one of his brothers excluding the claim in his other brothers. So far as the expert evidence is concerned, in my opinion, the learned Additional District Judge, was perfectly justified in ignoring the divergent reports of the two Handwriting Experts and placing reliance on the testimony of the two attesting witnesses and the scribe of the Will and no fault could be found with the same. In view of above, in my opinion, there is no merit in this appeal. Even otherwise, no substantial question of law arises for determination in this appeal. Hence the appeal is dismissed. Appeal dismissed.