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TMI Blog1996 (8) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Additional District Judge in Case No. 66 of 1986. 3. The plaintiff filed the suit for declaration of title and possession over the disputed land. It was alleged in the plaint that one Gurbax Singh was the admitted owner of the land in question and he died leaving behind his widow Gurdip Kaur and daughters Swarni, the plaintiff, and Roori @ Kirpal Kaur. Said Gurbax Singh purchased the land in question from one Dhara Singh under a registered sale deed dated 5th September, 1958. Widow Gurdip Kaur died on 14th April, 1968 and on her death plaintiff and Roori succeeded to the disputed land in question. Gurdip Kaur also had executed a Will on 29th February, 1968 in favour of her two daughters the plaintiff and Roori. Plaintiff and Roori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ Kirpal Kaur was not the daughter of Gurbax Singh. The execution of Will by Gurdip Kaur, widow of Gurbax Singh was also denied and it was averred that the said Will is a forged and fictitious document. The defendants also denied the factum of obtaining a succession certificate by the plaintiff and said Roori. It was thus contended that since Inder Kaur had half share in the disputed property being daughter of Gurbax Singh, she executed the sale deed in favour of defendant Nos. 1 to 4 and defendant No. 6 on receipt of valuable consideration. Thus, the possession of defendant Nos. 5 and 6 or defendant Nos. 1 to 4 is that of a true owner and they cannot be held to be trespassers. Defendant Nos. 1 to 4 filed a separate written statement and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (X). The possession of defendant Nos. 1 to 4 is that of a trespasser and plaintiff is entitle to file the suit for recovery of possession. 5. With these findings the suit having been decreed, the defendant Nos. 1 to 4 preferred an appeal which was registered as Civil Appeal No. 98 of 1985/1992. Defendant Nos. 5 and 6 also preferred an appeal which was registered as Civil Appeal No. 66 of 1986 and both the appeals were disposed of by a common judgment by the Additional District Judge, Amritsar. The learned Additional District Judge came to the conclusion that plaintiff could not have filed the suit so far as half share of Roori is concerned. He also came to the conclusion that the Will or the succession certificate is of no consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the Will executed by Gurdip Kaur, widow of Gurbax Singh in favour of plaintiff and Roori and in view of the succession certificate issued by the civil court in their favour, the lower appellate court was wholly in error in ignoring the same and in coming to a conclusion that plaintiff could not file the suit in respect of half share of Roori. It was further urged that the High Court without applying its mind dismissed the second appeal in limine has committed serious error of law. The learned counsel for the respondents on the other hand contended that a court of fact having examined and scrutinised the evidence on record and having reached his conclusion, the second appellate Court rightly refused to interfere with the same and acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate Court was not justified in not considering the material evidence as well as reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file do not prove Roori to be the daughter of Gurbax Singh. Further, the lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh, He has been swayed away by the so called mutation in the revenue record in favour of Inder Kaur. Mutation of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate and rights flowing therefrom cannot be ignored. Admittedly no attempt has been made by defendant Nos. 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the Second Appeal in limine. 8. In the aforesaid premises, we set aside the judgment and decree of the High Court in Second Appeal as well as that of the Additional District Judge in Case No. 66 of 1986/1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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