115 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM-10666-C-2019, CM-4124-C-2019 CM-5532-C-2019, CM-5533-C-2024 CM-5856-C-2024in RSA-3487-2011 (O&M)

Date of decision : 28.01.2025 Jagdish Chander ....Appellant Versus Shalinder Nagpal and another ...Respondents CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. Kulbhushan Sharma, Advocate for the appellant.

Mr. Pankaj Nanhera, Advocate for the applicant/respondents.

PANKAJ JAIN, J. (ORAL)

Since the present lis pertains to the year 2011 and the matter is listed qua hearing on the misc. applications, counsels for the parties pray that the main appeal be heard.

Keeping in view the aforesaid prayer, appeal is taken on Board today itself for hearing.

RSA-3487-2011 (O&M)

Defendant is in second appeal.

2. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the appellant as the defendant and the respondents and plaintiffs.

3. Shorn of the details, the brief facts are(cid:1) (cid:2)(cid:3)(cid:4)(cid:2)(cid:1)(cid:2)(cid:3)(cid:5)(cid:1)(cid:6)arties are closely related to each other. Common ancestor of parties Beli Ram had a son Jagdish Chander and a daughter Laxmi Devi Gogia. The dispute in the lis relates to estate left by Laxmi Devi Gogia. Laxmi Devi Gogia had no child. Plaintiffs claimed that Laxmi Devi Gogia adopted Savita Nagpal. Plaintiffs are sons of Savita Nagpal. Laxmi Devi Gogia died on 01.10.1989. Suit was filed seeking decree of declaration to the effect that the plaintiffs are owners in possession in equal shares to the extent of 1/2 share in the suit property, as detailed out in the headnote of the plaint on the basis of the said Will dated 26.08.1983 executed by Laxmi Devi Gogia.

4. Suit was resisted by the defendant. Ownership of Laxmi Devi Gogia was admitted. It was denied that the plaintiffs are owners in possession of the suit land or that Savita Nagpal was adopted by Laxmi Devi Gogia during her lifetime. Execution of the Will was also disputed. It was claimed that Laxmi Devi Gogia after death of her husband, lived with the defendant. The Will dated 26.08.1983 is a forged and fabricated document.

5. On the basis of the pleadings, following issues were framed :

“1. Whether the plaintiffs are the owners in possession of equal share i.e. half share each of the property specifically described in para No.1 of the plaint? OPP.

2. Whether the change of allotment carried out by the DDA vide letter No.1112 dated 16.08.1995 is illegal and not binding on the plaintiffs? OPP.

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

4. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD.

5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

6. Whether the civil court has no jurisdiction to decide the present suit? OPD.

7. Relief.”

6. Parties led their respective evidence in support of their rival claims.

7. After analysing the evidence threadbare, Trial Court held under issues No.1 and 2 that the Will propounded by the plaintiffs stands fully proved from the testimony of the attesting witnesses. It thus decided issues No.1 and 2 in favour of the plaintiffs and against the defendant.

8. Issues No.3 to 5 were also decided in favour of the plaintiffs and against the defendant. Suit was decreed.

9. Defendant assailed the impugned judgment and decree passed by the Court of First Instance before the Lower Appellate Court. The findings stand affirmed and the appeal stands dismissed by the Lower Appellate Court.

10. Mr. Sharma while assailing the impugned judgments and decrees passed by the Courts below refers to the statement made by PW-5 Sh. V.K. Sharma, Advocate, the attesting witness to the Will. He submits that as per the testimony of PW-5, witness never knew Laxmi Devi Gogia before she was introduced to him by Savita Nagpal 1/2 days prior to execution of the Will. He submits that since Savita Nagpal has not been examined, the identity of the