AMRIT LAL Vs. PHOOL CHAND

JUDGEMENT

(1.) Amrit Lal, appellant, filed a declaratory suit that he was the owner in possession of house No. 33 situate in Gali No. 4, Ferozepore Cantt, and sought consequential relief for the issuance of perpetual injunction restraining Phool Chand defendant-respondent from interfering with his possession.

(2.) The averment made in the plaint is that Kanhaya Lal deceased was his uncle and owner of the house in dispute. Kaloo Ram, the common ancestor, had two sons, namely Bipat Ram and Jhauo Ram, and Kanhaya Lal deceased is the son of Bipat Ram. Amrit Lal, plaintiff, is the grandson of Jhauo Ram. Admittedly, Kanhaya Lal was the owner of the house in dispute. He died on February 22, 1967. He had a son, named Tek Chand, who had pre-deceased him in the year 1947. Kanhaya Lal's wife also predeceased him and thus the plaintiff claimed the ownership of the house, in dispute, as his nephew. It is alleged in the plaint that during the life time of Kanhaya Lal, the plaintiff was in possession of the house, in dispute, and that after his death, the plaintiff came into possession of the house as its owner. It is also averred in the plaint that the plaintiff had performed the last rites of Kanhaya Lal deceased, who virtually treated the plaintiff as his heir. It is further alleged in the plaint that the defendant had filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, for ejectment of the plaintiff from the house, in dispute, on the ground that the plaintiff was a tenant under Kanhaya Lal and that Kanhaya Lal had executed a will in favour of the defendant by virtue of which the plaintiff had become the tenant of defendant on the death of Kanhaya Lal. It is further alleged that Kanhaya Lal never executed any valid will in favour of defendant and that if there be any, the same is forged. The defendant resisted the suit and raised many objections to the maintainability of the suit. It is averred that the defendant had earlier filed a suit for declaration against Smt. Padma Devi, widow of the son of Kanhaya Lal, on the basis of the will executed by Kanhaya Lal in his favour and that the suit was decreed. The defendant also denied the relationship of plaintiff with Kanhaya Lal and asserted that he has no locus standi to challenge the will executed by Kanhaya Lal in his favour. It is further pleaded that the plaintiff is in possession of only one Chaubara of the house in dispute, as tenant and that no cause of action arose to him to sue. The parties contested on the following issues :-

(3.) In order to prove his case, the plaintiff examined Ramji Lal, P.W. 4, Baldev Mitter, P.W. 5, and himself as P.W. 6. All these witnesses have deposed that the plaintiff is in possession of the house, in dispute, and is living there as its owner. Admittedly the plaintiff was in possession of a portion of the house even during the life time of Kanhaya Lal and that the defendant is not in possession of any portion of the house, in dispute. It is settled law that whosoever is in possession of the property, his possession is good against the whole world except the real owner. The defendant claimed ownership of the house by virtue of will executed by Kanhaya Lal in his favour. Hence, issue No. 3 goes to the root of the case. It is, therefore, necessary to decide this issue first. Both the Courts below have decided this issue in favour of the defendant and found that Kanhaya Lal had executed a valid will in his favour. It is contended on behalf of plaintiff-appellant that the will, in question, is surrounded by suspicious and unnatural circumstances. The first suspicious circumstance is that the will is an unregistered one andis not scribed by a regular deed-writer - although Kanhaya Lal was living in Ferozepure Cantonment as also the defendant-yet the will was not scribed by a regular deed-writer, though the facility was available at Ferozepore. The will was not got registered. Secondly, no attesting witnesses or the scribe of the will have been produced in this case - the attesting witnesses Locan Chand and Hira Lal and the scribe Thakur Singh, of the will are not dead. The defendant-respondents produced a certified copy of the statement of Locan Chand (Exhibit D. 1), who was examined as P.W. 2 in the Court of Shri R.S. Sharma, Sub-Judge Ist Class, Ferozepore in Civil Suit No. 122 of 1972, Phool Chand V. Padma Vati. Shri Jagdish Raj Dhawra, Reader of the Court of Sub-Judge, was also produced as D.W. 1 to prove the statement of Locan Chand. The defendant also produced D.W. 4 Dharam Singh son of Thakur Singh, the scribe of the will, Dharam Singh deposed that he used to see this father reading and writing and as such he was in a position to say that the will was in the hand-writing of his father Thakur Singh who is since dead. He also recognised the signatures of his father Thakur Singh on the said will. It is against this that the plaintiff-respondent examined two Handwriting Experts who compared the disputed signatures of Kanhaya Lal on the disputed will with his proved signatures on the map Exhibit P.1. Both the Experts gave opinions in favour of their respective party. The Expert produced by the plaintiff-appellant opined that the signatures of Kanhaya Lal on the disputed will did not tally with his proved signatures while the Expert produced by the defendant-respondent opined that these signatures do tally. Except Locan Chand's statement, which was recorded in the earlier case, there is no evidence on the record to show that the will in question has been executed by Kanhaya Lal. Locan Chand's evidence in the earlier case was taken into consideration by the trial Court under Section 33 of the Evidence Act. This, to my mind is not permissible. Admittedly the plaintiff-appellant was not party to the earlier suit, i.e. Civil Suit No. 122 of 1972 Phool Chand V. Padma Vati in which statement of Locan Chand was recorded. Moreover, ex-parte proceedings against Smt. Padma Vati defendant in that case took place and finally ex-parte decree was passed. Locan Chand was not cross-examined in that case. The plaintiff-appellant cannot be construed as the representative-in-interest of Smt. Padma Vati, whose interest is antagonistic to that of the plaintiff-appellant. Section 33 of the Evidence Act is in the following terms :-