R.S.A.No.1948 of 1982 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A.No.1948 of 1982 Date of Decision : 04.12 .2007 Smt.Dhan Kaur .....Appellant versus Rameshwar and others .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA Present : Shri S.C.Kapoor, Senior Advocate with Shri Harminderjeet Singh, Advocate for the appellant. Shri Hemant Bassi, Advocate for respondent No.1. -.- JUDGMENT HEMANT GUPTA, J. The defendant No.1 is in second appeal aggrieved from the judgment and decree passed by the First Appellate Court whereby suit for declaration that the plaintiffs and defendant No.2 are owners in possession of the land measuring 298 kanals 6 marlas, was decreed. The said declaration has been sought alleging therein that one Gopal has six sons namely Chet Ram, Ami Lal, Umra, Madho, Rameshwar and India. India died and his son Balbir Singh is plaintiff No.4. One Dhan Kaur was married to Ami Lal son of Gopal. Said Ami Lal died 27-28 years ago. As per the plaintiffs, Dhan Kaur widow of Ami Lal contracted karewa with Chet Ram son of Gopal soon after the mutation of inheritance of Ami Lal was sanctioned in her favour. It is thus alleged that she has forfeited her right to succeed to the property of Ami Lal. Thus, the plaintiffs sought declaration to the effect that Ami Lal's estate will be inherited by the plaintiffs and Chet Ram who has been impleaded as defendant No.2. It was R.S.A.No.1948 of 1982 2 also pleaded that Dhan Kaur has given birth to 5 children from the loins of Chet Ram and, therefore, Dhan Kaur cannot claim any right, title or interest in the estate of Ami Lal. It was defendant No.1 who contested the suit and alleged that the suit is time barred and that she has been residing in the house of Ami Lal. She denied having contracted karewa with Chet Ram and thus, sought dismissal of the suit. In order to prove the issues framed, the plaintiff No.3 examined himself as PW-1. PW-2 Sukh Ram is brother-in-law of Rameshwar-plaintiff. PW-3 Munga and PW-4 Balbir have deposed in respect of karewa of Dhan Kaur with Chet Ram. On the other hand, Dhan Kaur examined herself as DW-1 and examined Chet Ram as DW-4. DW-2 Har Sarup, DW-3 Daya Nand, and DW-5 Umed Singh have deposed that Dhan Kaur never contracted karewa with Chet Ram. The learned trial Court found that after the death of Ami Lal, it was in the year 1951, the property was mutated in the name of Dhan Kaur. Dhan Kaur became absolute owner of the property after coming in to force the Hindu Succession Act, 1956. It was held that the suit is barred as mutation in favour of Dhan Kaur was sanctioned immediately after the death of Ami Lal, whereas the suit has been filed on 7.8.1979 which is beyond the period of limitation prescribed under Section 100 of the Limitation Act. In view of the said finding, the learned trial Court dismissed the suit. However, the learned First Appellate Court found that Dhan Kaur has performed karewa with Chet Ram on the basis of oral and documentary evidence. The oral evidence relied upon by the learned First Appellate Court is the statement of the plaintiff and that of PW-2 Sukh Ram R.S.A.No.1948 of 1982 3 who was alleged to be relation of Dhan Kaur. PW-3 Munga and PW-4 Balbir were found to be collaterals of the parties. Their statement was found to be admissible to prove the relationship of the parties in terms of Section 50 of the Indian Evidence Act. The Court also considered the statement of PW-5 Ram Singh, Headmaster of the School, who has proved the documents Exhibit P-3 to P-8, admission record of the school. These documents are in respect to admission of children of Chet Ram, signed by Chet Ram. On the other hand, the evidence of DW-2 Har Sarup and DW-5 Umed Singh was not found to be relevant as they were hardly 5-6 years of age when Ami Lal died. Relying upon the Division Bench judgment of this Court, reported as “Ibrahim Versus Smt.Sharifan, AIR 1980, Punjab & Haryana-25”, the Court found that the suit cannot be said to be barred by limitation as the actual threat of dispossession gives the cause of action and not sanction of mutation. Therefore, the suit was decreed while accepting the appeal. Learned counsel for the appellant has vehemently argued that the findings recorded by the learned First Appellate Court suffer from patent illegality and irregularity and in fact, based upon misreading of evidence. It is alleged that PW-2 Sukh Ram is relation of plaintiff Rameshwar being his brother-in-law. Whereas, in respect of Dhan Kaur, he has deposed that she belongs to the family of Chacha and Tayya (i.e. paternal uncles). It is pointed out that PW-3 was 40 years and PW-4 of 30-35 years of age when their statements were recorded in the year 1981. Thus, the said witnesses would be hardly 6 years and 1 year of age respectively at the time of alleged karewa. It is alleged that though the learned First Appellate Court accepted their statement, but on the other hand, the statement of defendant's R.S.A.No.1948 of 1982 4 witnesses has been rejected on the ground of their tender age at the time of karewa. Still further, it is argued that in the absence of any evidence of karewa, the fact that Dhan Kaur has given birth to the children is not any evidence of marriage of Dhan Kaur with Chet Ram. Therefore, the findings recorded by the learned First Appellate Court suffer from misreading of evidence and are not sustainable. I have heard learned counsel for the parties on the following substantial question of law; i) Whether the learned First Appellate Court has misread the evidence to return a finding that Dhan Kaur contracted karewa with Chet Ram? ii) Whether the suit is within the period of limitation? Having heard learned counsel for the parties at some length and examining the record, I am of the opinion that the judgment and decree passed by the learned First Appellate Court suffers from misreading of evidence. PW-2 Sukh Ram in the very first line of his cross-examination, has deposed that he is brother in-law (Salla) of plaintiff Rameshwar and Dhan Kaur is his sister i.e. daughter of his uncle (Chacha/Tayya). Therefore, the said witness has close relation with the plaintiff then that of defendant Dhan Kaur. Therefore, the basis of the affirmation of evidence of the witness itself are erroneous. Still further, the statement of PW-3 Munga has been relied upon on the ground that he is collateral of the parties. Munga was 40 years of age when his statement was recorded in the year 1981 and thus, he was approximately 6 years of age at the time of alleged karewa. It is impossible for a child of 6 years to depose in respect of R.S.A.No.1948 of 1982 5 performance of karewa of Dhan Kaur with Chet Ram. Therefore, his statement could not have relied upon for returning a finding of karewa. PW-4 Balbir Singh has given his age 30-35 years in the year 1981. Even if his age is assumed to be 30 years, then he was 4 years of age at the time when alleged karewa was performed. Said Balbir Singh has deposed that 5 children were born out of karewa of Dhan Kaur with Chet Ram and such children call Chet Ram as their father and Dhan Kaur as their mother. In the cross examination, he has admitted that immediately after the death of Ami Lal, they have taken the possession of his land. In contradiction of the statements of other witnesses, he has stated in cross-examination that the karewa was performed after 2-3 years, but he could not name the persons who were present at the time of karewa. Still further, both PW-3 and PW-4 are not the resident of village Dankora i.e. the village of the parties. Therefore, in view of the fact that the witnesses are not residents of the same village and could not tell the name of the persons who were present at the time of karewa and that the witnesses are of tender age, therefore, their testimony cannot form basis for returning a finding of contract of karewa of Dhan Kaur with Chet Ram. On the other hand, the evidence of the defendants includes the statement of DW-2 Har Sarup who is 92 years of age and resident of Village Dankora i.e the village of the parties. He has categorically deposed that Dhan Kaur has not contracted any karewa with Chet Ram, though he denied that Dhan Kaur is residing with Chet Ram as his wife and that she has got 5 children. Even if it is assumed that Dhan Kaur has got 5 children from Chet Ram, it will not lead to proof of contract of karewa. In the absence of any positive evidence of karewa of Dhan Kaur with Chet Ram, it cannot be said that Dhan Kaur will lose her right as wife R.S.A.No.1948 of 1982 6 of Ami Lal on the basis of surmises and conjectures. Dhan Kaur may be living with Chet Ram and has given birth to his children, but in the absence of any positive evidence of karewa, the finding regarding marriage cannot be returned. Thus, the finding recorded by the learned First Appellate Court is based on misreading of evidence and suffers from patent illegality. Thus, the first substantial question of law is decided in favour of the appellant to return a finding that Dhan Kaur has not contracted karewa with Chet Ram and the finding recorded by the learned First Appellate Court is based upon the misreading of evidence. In respect of second substantial question of law, learned counsel for the appellant relies upon a Single Bench judgment of this Court passed in “R.S.A.No.968 of 1972, titled as Jamna and others versus Smt.Chandro and another” decided on 7.5.1982, to contend that mutation of estate of Ami Lal was sanctioned in favour of Dhan Kaur on 19.10.1951, therefore, the cause of action to file the suit arose when Dhan Kaur entered into karewa with Chet Ram. Since Dhan Kaur is reflected to be in possession of the suit land, therefore, her limited ownership has ripened into ownership in terms of Section 14 (1) of the Hindu Succession Act, 1956. This Court held to the following effect:- “xx xx xx xx As a matter of fact, in this case, the approach of the trial Court was right. The findings on issues Nos.1 and 2 (a) were rightly given by it. The cause of action to file the suit to the plaintiffs arose when Shrimati Rukman entered into the karewa marriage with Shisu, defendant. No objections whatsoever, was taken by the plaintiffs at that time and she was allowed to continue in occupation of the suit land R.S.A.No.1948 of 1982 7 for more than 20 years. Meanwhile, the Act came into force and she died thereafter. On her death, only the heirs under the Act are entitled to succeed to her property. No cause of action arose to the plaintiffs on her death. The cause of action, if any, arose to them when she, as stated earlier, entered into karewa marriage with Shisu, defendant. xx xx xx xx” The present suit for declaration was filed in the year 1979 i.e. more than 28 years after the mutation was sanctioned in favour of Dhan Kaur as owner of the land earlier owned by Ami Lal. With the commencement of the Hindu Succession Act, 1956, Dhan Kaur ripened her ownership over the said land. It is a positive proof of karewa, she can said to forfeit her right in the estate of her deceased husband. The evidence on record does not support the plea of the plaintiff that Dhan Kaur entered into karewa. Therefore, Dhan Kaur cannot be made to forfeit her estate devolved upon her after the death of her husband Ami Lal. In view of the above, the present appeal is allowed. The judgment and decree passed by the learned First Appellate Court is set- aside and that of the learned trial Court is restored and the suit of the plaintiffs is dismissed. 04-12-2007 (HEMANT GUPTA) *mohinder JUDGE