117 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : 25.02.2025 Manohar Lal Mehta (since deceased) through his LRs ...... Appellant versus Krishna Devi & ors. ..... Respondents CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN ***

Present :- Mr. Munish Gupta, Advocate for the appellant.

***

PANKAJ JAIN, J. (ORAL)

1 Plaintiff is in second appeal aggrieved of part of judgment and decree dated 20.09.2019 passed by Additional District Judge, Hoshiarpur returned by the Lower Appellate Court allowing his suit in part to the extent that he has been entitled to 1/8^th share in the suit property left by Raja Ram his father. For convenience parties hereinafter are referred to by their original position in the suit i.e. the appellant as plaintiff and the respondents as defendants.

2 Plaintiff filed a suit seeking decree of declaration to the effect that he is owner in possession of the land measuring 153 kanals 8 marlas as detailed out in the head note of the plaint. Plaintiff claimed that the suit land was purchased in the name of Raja Ram his father as Benamidar. After death of Raja Ram, the same has been wrongly mutated in favour of defendants No.1 to 4. Plaintiff being exclusive owner in possession is entitled for decree of declaration to the said effect. Further prayer was that he being in exclusive possession of the suit land is entitled for decree of permanent injunction against the defendants. Defendants propounded unregistered WILL dated 08.03.1976 claiming to have been executed by Raja Ram. Suit filed by the plaintiff was put to trial by the Court at First instance framing following issues :- “1. Whether the sale deeds dated 4.7.68 and the two sale deeds dated 9.3.70 got executed by Raja Ram father of the plaintiff qua the suit properties were Benami purchases by the plaintiffs in the name of his father Raja Ram? OPP

2. Whether Raja Ram father of the plaintiff died intestate ?OPP

3. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP

4. Whether the plaintiff is entitled to the consequential relief of permanent injunction as prayed for? OPP

5. Whether the plaintiff is entitled to the alternative relief of declaration as prayed for? OPP

6. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for by way of alternative relief? OPP

7. Whether the site plan of the plaintiff is not correct? OPD

8. Whether the plaintiff has not come to the court with clean hands and has suppressed material facts ? OPD

9. Whether the plaintiff is barred from filing this suit on the basis of agreement dated 18.2.87? OPD

10. Relief.”

3 Trial Court returned findings on issue No.1 to 6 against the plaintiff and in favour of the defendants. WILL executed by Raja Ram was believed. Even agreement propounded by defendants dated 18.02.1987 Ex.D-4 was held to have been proved and was relied upon to adjudicate collateral rights between the parties. Suit filed by the plaintiff was dismissed.

4 Dissatisfied plaintiff preferred appeal. The same has been partly allowed. Lower Appellate Court held that plaintiff having failed to prove that he contributed to the funds cannot be held to be real owner to dislodge Raja Ram as Benamidar. WILL propounded by the defendants has been disbelieved holding that original copy of WILL propounded by the defendants was neither produced before the Court nor was available in the summoned record. Thus the Lower Appellate Court held that estate left by Raja Ram has to follow natural succession and the plaintiff being one of the successors being his son was entitled to 1/8^th share. The Appellate Court thus partly decreed the suit filed by the plaintiff to that extent.

5 Pure finding of fact has been recorded by the Lower Appellate Court. Scope of second appeal under Section 41 of the Punjab Courts Act, 1918 came up for consideration before Apex Court in Randhir Kaur Versus Prithvi Pal Singh & Ors. 2019(17) SCC 71 wherein it was held as under :-

“14. The Division Bench of Punjab and Har