IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2770 of 2004 Date of Decision: 07.01.2009 Smt. Ram Pyari and others. ....... Appellants through Shri Akshay Bhan, Advocate with Shri Santosh Sharma, Advocate. Versus Smt.Madia alias Maria(since deceased) now represented by her legal heir, namely, Mahi Pal and others. ....... Respondent nos.1 & 2 through Shri Arun Palli, Senior Advocate with Shri Parminder Singh and Shri Jai Bhagwan, Advocates. Respondent nos. 3 to 5 through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against judgment and decree dated 7.6.2004 passed by the Additional District Judge, Panipat (hereinafter referred to as `the First Appellate Court') vide which judgment and decree dated 30.4.2003 of the Additional Civil Judge (Senior Division), Panipat (described hereinafter as `the trial Court') were set aside and the suit of the plaintiffs-respondents was decreed. R.S.A.No.2770 of 2004 -2- .... The facts of the case are as follows:- The plaintiffs- Smt. Madia alias Maria and Smt. Hardai daughters of Badam filed a suit for declaration and possession against the present appellants and proforma respondents. The suit land measures 132 kanals and 17 marlas which is in question, is the estate of Bhartu. One Patori was married to Bhagirath, who died and thereafter, she is said to have entered into a kareva marriage with Munshi, brother of Bhagirath. Munshi was already married with one Rajo. He had three children from Rajo, namely, Ram Pyari, Kishna and Puran. After the death of Munishi, Patori is stated to have performed another kareva marriage with Bhartu, who had two children from her,namely, Ram Chander and Lakhi. Lakhi died during the life time of Bhartu and Ram Chander died after the death of his father. Initially, the estate of Bhartu devolved upon Patori and Ram Chander and after the death of Ram Chander, it was mutated solely in the name of Patori. Patori died on 10.9.1989 leaving the question of succession open as Ram Chander and Lakhi died issueless. It is Ram Pyari who was allegedly born to Rajo from the loins of Munshi who laid a claim to the estate of Bhartu by claiming herself to be the daughter of Patori from the loins of Munshi. Prior to the filing of the instant suit, a collusive decree is said to have been suffered by Ram Pyari – appellant no.1 in favour of three persons, namely,Kishna, Puran sons of Munshi and Kanwal son of Puran. In this suit, Ram Pyari is stated to have pleaded that she was the daughter of Bhartu and Patori and having succeeded to the estate of Bhartu, was R.S.A.No.2770 of 2004 -3- .... alienating the property in question in favour of the aforesaid persons,namely, Kishna, Puran and Kanwal. That suit was decreed on 6.1.1994,which decree is also in question in the present suit. The plaintiffs, in the instant suit, pleaded that they are the owners and in joint possession of 2/3rd share of the suit land and that Tek Ram was the owner in possession thereof to the extent of 1/3rd. They also pleaded that mutation no.3449 sanctioned on 31.10.1990 in favour of Ram Pyari be declared as null & void and not binding on their rights and that consent decree dated 6.1.1994 suffered by her in favour of Ishwar Singh, Kanwal Singh and Kuldeep Singh sons of Puran be also declared as null & void. The appellants, who along with Puran, contested the suit, pleaded that Ram Pyari was the daughter of Munshi born out of his union with Patori and since she was the daughter of Patori, she had the preferential right of succession over and above the claim of the plaintiffs qua the suit property as they are only agnates and cognates of Bhartu. The trial Court framed the following issues on the basis of the pleadings of the parties:- 1. Whether the plaintiffs are entitled for a decree of joint possession as alleged?OPP 2. Whether the mutation no.3449 dt. 31.10.90 is null, void, ab initio, inoperative and not binding upon the plaintiffs?OPP 3. Whether the collusive decree dt. 6.1.94 in civil suit No.952/93 & subsequent mutation No.3656 are null and R.S.A.No.2770 of 2004 -4- .... void, and illegal?OPP 4. Whether the suit is not within time?OPD 5. Whether the suit is not maintainable in its present form?OPD 6. Relief. Issue Nos. 1 to 3 were taken up together for determination and after appraisal of the entire evidence on record, the trial Court decided the same against the plaintiffs, whereas issue nos. 4 & 5 were decided against the defendants. Accordingly, the suit was dismissed. Feeling aggrieved, the plaintiffs filed an appeal which was accepted by the First Appellate Court by the impugned judgment and decree and the findings of the trial Court were reversed. Hence, this appeal by the defendants. I have heard the learned counsel for the parties and have carefully perused the entire record. The question that has been thrown up for consideration is whether Ram Pyari had any right to succeed to the estate of Bhartu on the basis of her plea that she is the daughter of Patori, who had performed kareva marriage with him. It is to be noticed at the cost of repetition that initially, Patori was married with Bhagirath and after his death, she had performed kareva marriage with Munshi, who was also married with Rajo. Munshi and Rajo had three children from marriage, namely, Kishna, Puran and Ram Pyari. This fact was,however, seriously disputed by Ram Pyari, who had pleaded R.S.A.No.2770 of 2004 -5- .... that she was the daughter of Patori born from the loins of Munshi. In this view of the matter, the only question that is to be determined is as to whether Ram Pyari is the daughter of Patori with her union with Munshi as claimed by her or she is the daughter of Rajo born from the loins of Munshi. A perusal of the evidence which has been adduced by the respective parties is, therefore, necessary to be adverted to. Interestingly, in the previous suit where Ram Pyari is said to have suffered a collusive decree in favour of Ishwar Singh, Kanwal Singh and Kuldeep Singh (appellant nos. 2 to 4 in the present appeal), she stated that she is the daughter of Patori and Bhartu. That suit was filed by Ishwar Singh, Kanwal Singh and Kuldeep Singh and Ram Pyari verified the written statement by proclaiming herself to be the daughter of Bhartu and in this manner, clandestinely alienated the property of Bhartu in favour of the aforesaid three persons. Her testimony which has been recorded as DW1 in the instant proceedings, assumes interesting reading as she testified herein that Munshi and Rajo had three children, namely, Kishna, Puran and herself. She, of course, tried to wriggle out of this admission in the next breath, but, in this very statement, she goes on to state that she is not the daughter of Bhartu, implying thereby that she concededly played a virtual fraud when she suffered the earlier decree in favour of Ishwar Singh,Kanwal Singh and Kuldeep Singh. DW5 is Kanwal Singh son of Puran and is arrayed as appellant no.3 herein. He deposed that Munshi had three children, namely, Kishna, R.S.A.No.2770 of 2004 -6- .... Puran and Ram Pyari. In the written statement filed by Ram Pyari and others, it was claimed that she was the sole daughter of Munshi and Patori. In view of the aforementioned material on record, especially the admission of Ram Pyari herself which cannot be wished away, it is abundantly clear that she was, in fact, the daughter of Munshi and Rajo which inference is also fortified from the fact that she chose to alienate the property of Bhartu in favour of her nephews, who are the sons of Puran. There is no other material on record from which it can be inferred that Ram Pyari was the daughter of Munshi and Patori. In this view of the matter when Ram Pyari is completely stranger to the estate of Bhartu, she cannot lay any claim thereto and for this very reason, the collusive decree suffered by her necessarily has to be set aside. Consequently, the impugned judgment and decree passed by the First Appellate Court are affirmed and the appeal, being devoid of any merit, is dismissed. January 07,2009 ( Mahesh Grover ) “SCM” Judge