BALWANT SINGH Vs. NISABAR SINGH AND OTHERS

JUDGEMENT

(1.) (Oral) - This order of mine shall dispose of two Regular Second Appeals bearing No. 3908 of 2009 titled as Balwant Singh Vs. Nisabar Singh and ors. filed at the instance of plaintiff and RSA No. 1338 of 2010 titled as Nishabar Singh and ors. Vs. Balwant Singh , also at the instance of plaintiff.

(2.) Before adverting to the submission of learned counsel for the parties, it would be apt to give brief preface of the matter. Sohan Singh had two wives namely Devo and Lachhmo. From the loins of Sohan and Devo, Sajjan Singh & Nazar Singh were born and Sajjan Singh is the father of Balwant Singh-appellant in RSA No. 3908 of 2009 and respondent-defendant in RSA No. 1338 of 2010. From the loins of Sohan and Lachhmo, two sons were born, namely Phulla and Tehal Singh. The entire controversy revolves around share of Tehal Singh who died issueless. Tehal Singh filed Civil Suit No. 137 of 1993 seeking declaration, possession and permanent injunction challenging the judgment and decree dated 24.11.1990, obtained on the basis of fraud. Aforementioned suit was with regard to land measuring 26 kanals. Tehal Singh suffered judgment and decree in favour of defendant Nos. 1 to 4 who are sons of Phulla.

(3.) Similarly, Phulla filed civil suit bearing No. 3 of 1998 against Balwant Singh seeking declaration by challenging the judgment and decree dated 19.11.1991 passed in civil suit No. 890 of 1991 suffered by Tehal Singh in favour of Balwant Singh in suit titled as Balwant Singh Vs. Tehal Singh. The short question which arises for adjudication of the aforementioned appeal is that whether Tehal Singh on the date of execution of the judgment and decree had his left thumb existing or not. Though trial Court in RSA No. 3908 of 2009 dismissed the suit, on the ground that plaintiff did not lead evidence as to whether Tehal Singh left thumb impression or was it amputated for the reason the written statement and power of attorney filed in the judgment and decree dated 24.11.1990 bore left thumb impression of Tehal Singh. However, before lower Appellate attempt was made to produce on record the statement suffered by Tehal Singh under Sec. 313 in criminal case which proves that he had appended right thumb impression and thus, the presumption which could be drawn was that his left thumb impression was amputated long time back, therefore, judgment and decree dated 24.11.1990 as well as judgment and decree dated 19.11.1991 passed in civil suit No. 890 of 1991 bearing again left thumb impression on the written statement and power of attorney could not be validly passed as it was a outcome of fraud and misrepresentation played on Tehal Singh. Both the parties are aggrieved vis-a-vis the inheritance of the share of Tehal Singh.