RSA No.3362 of 2008 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3362 of 2008 Date of Decision: 17.11.2008 Baldev Singh and another ..Appellants. Vs. Om Parkash and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Gurnam Singh, Advocate for the appellants. Mr.Akshay Kumar Goel, Advocate for the respondents. * * * Rakesh Kumar Jain, J. By this common judgment, I shall be disposing of two appeals both filed by Baldev Singh and Ajit Singh arising out of Civil Suit No.RBT 305 of 1998 titled as Baldev Singh and another Vs. Om Parkash and others in which they have sought declaration with consequential relief of permanent injunction and Civil Suit No.RBT 252 of 1998 titled as Om Parkash and others Vs. Baldev Singh and another in which possession has been sought with mesne profits. In order to understand the dispute in the present case, it is necessary that the pedigree table be reproduced, which is as under : Jiwan Singh : _______________________________________________________ Kartar Singh Fauji Singh Piara Singh (died issueless) (deceased) (now dead) RSA No.3362 of 2008 -2 - _________________________________________________________ Gurbax Malook Guirdeep Kapoor Mohinder | Singh Singh Singh Singh Singh | | ___________________________|__ | | Anoop Singh Shisha Singh” Plaintiffs-appellants Baldev Singh and Ajit Singh filed suit No.305 of 1998 claiming themselves to be the sons of Smt.Khem Kaur who after the death of her husband Bahadur Singh during partition of the country, performed a Kareva marriage with Kartar Singh in the presence of Gurbachan Singh etc. The plaintiffs have alleged that they were minors at that time when their mother Khem Kaur performed Kareva marriage with Kartar Singh. The said Kartar Singh was owner in possession of land measuring 48 Kanals 6 marlas (land in question). The plaintiffs have alleged that Kartar Singh executed a Will dated 15.11.1982 in favour of Khem Kaur and died on 24.11.1982. It is also alleged that on the basis of Will, mutation was sanctioned in favour of Khem Kaur by the Assistant Collector Ist Grade, Thanesar on 21.10.1985 but thereafter, a civil suit was filed by Anoop Singh (defendant No.5) claiming himself to be the owner of the land in question on the basis of Will dated 22.11.1971. It was further alleged that in that suit, defendant No.5 Anoop Singh was held to be the owner in possession of the suit land. An appeal was filed by the plaintiff against the said judgment and decree dated 23.5.1987 and were held to be owners in possession of the land in question. It was also held that Will produced by defendant No.5 was forged. Defendant No.5 had also filed an appeal against the order of Assistant Collector Ist Grade against the acceptance of the mutation. The matter came up in the High Court but in the meanwhile, RSA No.3362 of 2008 -3 - defendants No.5 to 11 in connivance with the revenue Authorities got the mutation sanctioned in their names but possession of the land in question remained with the plaintiffs. It was also the case of the plaintiffs that they found the Will executed by Kartar Singh dated 15.11.1982 on 14.10.1992 and the same was produced before the Court but subsequently defendants No.5 to 11 sold the land in question illegally to defendants No.1 to 4 by virtue of sale deed dated 17.9.1993 without notice to the plaintiffs and without any right, title or interest. It is also the case of the plaintiffs that Naib Tehsildar and Joint Sub Registrar, Ladwa and Tehsildar, Thanesar were informed through registered notices not to register any sale deed, but to no effect. Hence in the suit filed by the plaintiffs Baldev Singh and Ajit Singh, a decree was sought for declaration to the effect that plaintiffs are owners in possession in equal share of the suit land detailed in para No.2 of the plaint and that the impugned sale deed dated 17.9.1993 executed by defendants No.5 to 11 in favour of defendants No.1 to 4 is illegal, null and void and is not binding upon the rights of the plaintiffs and also prayed for decree for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land forcibly and illegally. The suit was contested by defendants No.1 to 4 and in the joint written statement, they raised preliminary objections that the plaintiffs have no locus standi to file the suit and they are estopped by their own act and conduct and acquiescence. On merits, it was alleged that Kartar Singh, real uncle of Anoop Siungh died issue-less and his wife also died during his life time, thereafter, Kartar Singh executed a Will in favour of Anoop Singh etc. voluntarily. Thereafter, upon the death of Kartar Singh, defendant No.5 Anoop singh etc. became owner RSA No.3362 of 2008 -4 - of the suit property and accordingly, mutation was sanctioned in their favour. The plaintiffs filed Civil Writ Petition to issue mandamus directing the revenue authorities to sanction the mutation in their favour and alleged that Khem Kaur died on 21.5.1989 but the said writ petition captioned as Baldev Singh etc. Vs. Financial Commissioner and others was decided by Hon'ble Mr.Justice N.K.Sodhi in terms of order dated 6.9.1993 observing therein that there is no merit in the writ petition and the same is dismissed. It was also observed that Fauji Singh and Piara Singh had died after the decision of previous Civil Suit No.4/86 and Civil Appeal No.65/1987 and as such, Anoop Singh etc. are the legal heirs of deceased Kartar Singh and they have inherited the property in dispute left by Kartar Singh who was their uncle and mutation was rightly sanctioned in their favour. On the basis of their being owners of the land in question, the same had been sold to defendants No.1 to 4. Replication was not filed by the plaintiffs. On the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiffs are owners in possession in equal share of the suit property detailed in para No.1 of the plaint? OPP. 2. Whether the sale deed dated 17.9.1992 executed by defendants No.5 to 11 in favour of defendants No.1 to 4 is illegal, null and void, as alleged? OPP. 3. Whether the defendants are owners in possession on the basis of sale deed dated 17.9.1993? OPD. 4. Whether the suit has not been valued properly for the purpose of court fees and jurisdiction? OPD. 5. Whether the suit is not maintainable? OPD. 6. Whether the plaintiff has no locus standi to file the present suit? OPD. RSA No.3362 of 2008 -5 - 7. Whether Khem Kaur mother of the defendant married to Kartar Singh, if so to what effect? OPP. 8. Whether deceased Kartar Singh executed the Will dated 15.4.1982 in favour of Khem Kaur? OPP. 9. Relief. Both the parties led voluminous evidence on record in order to prove their respective suits. Trial Court dismissed the Suit No.RBT 305 of 1998 titled as Baldev Singh and another Vs. Om Parkash and others and decreed the Suit No.RBT 252 of 1998 captioned as Om Parkash and others Vs. Baldev Singh and another against which plaintiffs filed two appeals namely Civil Appeal Nos.86 and 87 of 2008, however, both the appeals have been dismissed by the learned first Appellate Court and hence the present appeals have been filed by the plaintiffs in the High Court. Sh.Gurnam Singh, learned counsel appearing for the plaintiffs- appellants has raised three contentions before this Court in order to assail the findings of both the Courts below. At the outset, he has submitted that the finding recorded by the Courts below that Khem Kaur is not the legally wedded wife of deceased Kartar Singh is illegal because there are documents on record namely ration card and voters' list Ex.P6/A and Ex.P6/B respectively (which are Government documents) to prove that both have lived together for a long period of 40 years therefore, presumption is in their favour that they had lived as husband and wife. Therefore, the finding recorded by the Court below that Khem Kaur was not legally wedded wife of Kartar Singh is untenable and should be reversed. Learned counsel for the appellants has relied upon two judgments of the Supreme Court, namely, RSA No.3362 of 2008 -6 - Chowdegowda alias Dorji (dead) by LRs and others Vs. C.Nagaraju and others AIR 1996 SC 3485 and M.Govindaraju Vs. K.Munisami Gounder (D) and others AIR 1997 SC 10 in this regard. On the other hand, Sh.Akshay Kumar Goel, learned counsel appearing for the respondents has argued that question of legality of marriage of Khem Kaur with deceased Kartar Kaur was the subject matter of dispute between the parties in the previous litigation, in Civil Suit No.4 of 1986 titled as Anoop Singh Vs. Baldev Singh and others. It is pointed out by the learned counsel for the respondents that in the said suit, issue No.4-A was “Whether Smt.Khem Kaur is the widow of Kartar Singh, if so its effect? OPD”. The afore-stated issue was decided against the present plaintiffs by the trial Court vide its judgment (Ex.D6) and was further upheld by the learned first Appellate Court (Ex.D8) in which the plaintiffs had produced in evidence both the documents viz.voters' list and ration card in order to prove that Khem Kaur is the legally wedded wife of deceased Kartar Singh. It is further submitted by the learned counsel for the respondents that the present plaintiffs then filed RSA No.2223 of 1992 Baldev Singh and another Vs. Anoop Singh but it was dismissed by Hon'ble Mr.Justice Amarjeet Chaudhary on 26.8.1993. Thus, it is submitted that the issue “as to whether Khem Kaur is the legally wedded wife of Kartar Singh or not” has already been adjudicated upon up to the Hon'ble High Court, therefore, it can not be re-agitated in the present appeal again. Learned counsel for the respondents has also submitted that Kartar Singh was not at all related to Bahadur Singh, previous husband of Khem Kaur and as such Kareva marriage could not have been performed. He relied upon decision of this Court in the case of RSA No.3362 of 2008 -7 - Smt.Giano Vs. Puran and others 2005(4) RCR (Civil) 413 in which it has been held that Kareva marriage takes place only between the wife of an elder brother when the younger brother was unmarried and under the customary law, no Kareva marriage is solemnised with the wife of a stranger. The Supreme Court, in the case of Chowdegowda alias Dorji (dead) by LRs (supra), observed that factum of customary marriage between father and his first wife is difficult to prove at a distance of 40 years whereas in the present case this is not the situation because in this case the factum of customary marriage as alleged by the plaintiffs is that it is performed by way of Kareva but it cannot be held to be legal because Bahadur Singh, previous husband of Khem Kaur, was not related to Kartar Singh in any manner. Therefore, in this situation, decision in the case of Smt.Giano (supra) shall apply with full force that Kareva marriage with a stranger is not permissible in law. Besides this as discussed above, documents Ex.D6, Ex.D8 and Ex.D11 are sufficient to prove that the issue with regard to the validity of marriage of Kartar Singh with Khem Kaur has already been adjudicated upon up to the High Court. Therefore, it cannot be re-agitated by the plaintiffs on the strength of ration card and voters' list as they were considered in detail by the Court in the earlier litigation culminating up to the High Court. The second argument of the learned counsel for the appellants is with regard to Will (Ex.D9) which is alleged to have been executed by Kartar Singh in favour of Khem Kaur. A perusal of Ex.D9 shows that Khem Kaur is alleged as legally wedded wife of Kartar Singh. I have already observed that Khem Kaur is not proved to be the legally wedded wife of RSA No.3362 of 2008 -8 - Kartar Singh, thus, there was no occasion for Kartar Singh to give his property by way of Will by announcing her to be his legally wedded wife. Be that as it may, the question being set up by the learned counsel for the appellants has been proved in accordance with law. Learned counsel for the appellants submits that the findings recorded by the learned first Appellate Court in para 36 are erroneous because in terms of the provisions of Section 63 of the Indian Succession Act, one of the attesting witnesses, namely Babu Ram PW2 has been produced, who has admitted that Will was executed by Kartar Singh in his presence. On the other hand, learned counsel for the respondents has argued that PW2 Babu Ram was examined twice. In his first deposition, he stated that Scribe of the Will was Sarpanch and then in his deferred deposition, he changed his stand and stated that the Will was scribed by Charanjit Singh. Learned counsel for the respondents submits that Charanjit Singh was not examined as a witness. Learned counsel for the appellants has further submitted that Charanjit Singh was summoned and had stated that he has scribed the Will but on the asking of this Court, he could not explain as to when he was examined as a witness by the Court and cross-examined by the other side because as per the counsel for the respondents, there are 10 PWs examined by the plaintiffs namely PW1 Ajit Singh, PW2 Babu Ram, PW3 Subhash Chander, PW4 Raj Kumar, PW5 Mohinder Pal Mehta, PW6 Prithvi Singh, PW7 Gurbachan Singh, PW8 Harbans Singh, PW9 Yash Pal andf PW10 Surinder Kumar. It is a settled law that if a witness is examined in chief and is not put for cross- examination by the other side, then his statement cannot be treated to be an evidence. RSA No.3362 of 2008 -9 - I have considered the contentions raised by both the learned counsel for the parties in this regard. The Supreme Court in the case of B.Venkatamuni Vs. C.J.Avodhva Ram Singh & Others 2007(1) CCC 470 held that when a Will was made by a non professional Scribe then the burden is very heavy upon a person, who is setting up a Will in order to exclude the natural heirs from succession. In the present case also, Will is alleged to have been scribed earlier by a Sarpanch and then by Charanjit who are not the professional Scribes. The attesting witness PW2 Babu Ram has stated in one breath that Will was scribed by the Sarpanch and in other breath be said that it was scribed by Charanjit Singh but none of them was examined in the Court. Both the Courts below have disbelieved the statement of PW2 Babu Ram and have returned concurrent finding of fact that the Will could not have been proved with the examination of the said witness PW2 Babu Ram. Since I have already held that Smt.Khem Kaur was not the legally wedded wife of Kartar Singh, therefore, the present plaintiffs are not held entitled to succeed to her property by way of natural succession as the property is not devolved upon them from Kartar Singh, in case the Will is ignored. So far as the testamentary succession is concerned, even the Will Ex.D9 has not been proved beyond reasonable suspicion, therefore, the same also can not be relied upon. In view of the above findings, the third question raised by the learned counsel for the appellants that defendants No.1 to 4 are not the bonafide purchasers does not arise at all because once they are not the owners in having succeeded to the property left by Kartar Singh, they have RSA No.3362 of 2008 -10 - no right to say that respondents are not the bonafide purchasers. No other point has been raised by the learned counsel for the appellants. In view of the above, I do not find any merit in both the present appeals and the same are hereby dismissed without any order as to costs. (Rakesh Kumar Jain) 17.11.2008 Judge Meenu Refer to Reporter - Yes