R.S.A. No. 2458 of 1983 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2458 of 1983 (O&M) Date of decision: 18.01.2010 Mohinder Kaur ....Appellant Versus Sant Kaur and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. Sanjay Majithia, Sr. Advocate, with Mr. Jashanpreet Singh, Advocate, for the appellant. None for the respondents. VINOD K. SHARMA, J.(ORAL) This regular second appeal by the plaintiff/appellant is directed against the judgment and decree dated 10.8.1983, passed by the learned Courts below, dismissing the suit for possession filed by the plaintiff/appellant. The plaintiff filed a suit for possession by pleading, that Inder Singh and Chanan sons of Badana were the owners of the entire land in equal shares. Inder Singh died leaving behind the plaintiff and defendant No.1, as his daughters, who were entitled to inherit his property in equal shares. The plaintiff claimed possession of 1/4th share out of the entire land i.e. half share of Inder Singh. It was further pleaded, that Chanan Singh, who was the owner of half share of the land, also died on 1.1.1976, leaving behind the plaintiff as his only legal heir. It was the case of the plaintiff, that Chanan Singh was unmarried and issueless. The plaintiff used to serve him and as a consequence of the service, Chanan Singh executed 'Will' in favour of the plaintiff, bequeathing his property to her. R.S.A. No. 2458 of 1983 (O&M) -2- The plaintiff claimed half share belonging to Chanan Singh in the land in dispute and possession of 3/4th share of the total land was claimed. It was the case of the plaintiff, that defendant No.2 purchased some land from Chanan Singh deceased, but the plaintiff denied the validity of the sale deed in favour of defendant No.2. It was the case of the plaintiff, that the sale deed is dated 1.1.1976, whereas Chanan Singh died on 1.1.1976, therefore sale deed could not have been executed. The sale was said to be without consideration. It was also the case of the plaintiff/appellant, that Chanan Singh at the time of his death, was not in good senses, therefore, was not in a position to understand the transaction. On notice, the suit was contested. Defendant No.1 denied the fact that plaintiff/appellant was the daughter of Inder Singh. It was claimed by defendant No.1, that she was the only daughter of Inder Singh, who had made a valid gift of his entire land in favour of defendant No.1. The gift was made on 22.12.1955. Additional plea was also taken, that the suit as framed was not maintainable and that an earlier suit on the similar plea stood already dismissed. The locus standi of the plaintiff to file the suit was also challenge. It was claimed that defendant No.1 had become owner of the land by adverse possession. Defendant No.2 filed a separate written statement, wherein he denied the relationship of plaintiff with Inder Singh. He denied that Chanan Singh died on 1.1.1976. The stand taken by defendant No.2 was, that Chanan Singh had sold his land measuring 40 kanals 11 marlas for a consideration of Rs.40,000/- (Rupees forty thousand only) vide registered sale deed dated 1.1.1976. Prior to the date of sale, the land was under mortgage with defendant No.2 for a sum of Rs.28,200/- (Rupees twenty eight thousand and two hundred only). He claimed R.S.A. No. 2458 of 1983 (O&M) -3- himself, to be bona fide purchaser for consideration. The plea was also raised, that suit was not maintainable, as the earlier suit on the same cause of action filed by the plaintiff was dismissed as withdrawn. Replication was filed, wherein the pleas raised in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff is the daughter of Inder Singh? If so, its effect? OPP 2. Whether Chanan Singh executed valid will in favour of the plaintiff on 24.9.1973? If so, its effect? OPD 3. Whether Chanan Singh was owner of suit land at the time of his death? OPP 4. Whether Inder Singh deceased executed a valid gift in favour of defendant no.1 on 22.12.1955? If so, its effect? OPD 5. Whether the suit is within time? OPD 6. Whether the plaintiff is estopped to file the suit by his own act and conduct? OPD 7. Whether the suit does not lie in the present form? OPD 8. Whether the defendant no.1 has become owner of the suit land by way of adverse possession? OPD 9. What is the effect of the withdrawal of the previous suit of the plaintiff? OPD 10. Whether defendant no.2 purchased the suit land from Chanan Singh bonafide and for valuable consideration vide sale deed dated 1.1.1976? OPD 11. What is the date of death of Chanan Singh? OPP 12. Relief.” In support of issue No.1, the plaintiff/appellant examined PW1 Abdul Ghani son of Sudu, PW2 Lal Singh son of Prem Singh, PW3 Gurbux Singh son of Jagir Singh, PW4 Partap Singh son of Hardit Singh, PW5 Pritam Singh son of Karnail Singh and the plaintiff/appellant herself appeared as PW6. She also placed reliance R.S.A. No. 2458 of 1983 (O&M) -4- on birth certificate Ex. P3. The learned trial Court decided issue No.1 against the plaintiff, for the reason, that the witnesses examined by the plaintiff/appellant failed to depose as per requirement of Section 50 of the Indian Evidence Act, as these witnesses failed to depose regarding special means of knowledge, qua the relationship of plaintiff/appellant with Inder Singh. Birth Certificate Ex. P3 placed on record by the plaintiff/appellant showed to be of Harbans Kaur, which the plaintiff claimed it to be her. The learned trial Court, therefore, held that it was not the pleaded case of the plaintiff, that earlier she was known as Harbans Kaur, therefore, Birth Certificate Ex. P3 was not relied upon. It was held, that plaintiff/appellant failed to prove that she was the daughter of Inder Singh. Issue No.2 was decided in favour of the plaintiff/appellant. It was held that Chanan Singh executed valid 'Will' in favour of the plaintiff/appellant on 24.9.1973, and accordingly she was held entitled to inherit the property of Chanan Singh. Issues No.3, 10 and 11 were taken up together. The learned trial Court, on appreciation of evidence, oral as well as documentary, i.e. the revenue record, the sale deed and the mortgage deed, recorded a finding that Chanan Singh was the owner of ½ share of the land, but had sold the land to defendant No.2 for consideration of Rs.40,000/- (Rupees forty thousand only) vide sale deed Ex. D2. The learned Court held, that the sale deed was genuine as no suspicious circumstances were proved by the plaintiff/appellant. The learned trial Court also held, that no evidence was led to prove the death of Chanan Singh on 1.1.1976 as pleaded, as none of the witnesses examined deposed about his death. The learned trial Court held, that sale deed Ex. D2 was validly executed, and in pursuance R.S.A. No. 2458 of 1983 (O&M) -5- thereto, defendant No.2 became the owner. On issue No.4, it was held that the gift deed Ex. D3 was duly proved and entered in the revenue record. Therefore, the learned trial Court held, that by virtue of gift deed, the rights in the property were transferred to defendant No.1 and, therefore, at the time of his death, Inder Singh was not the owner of the land. It was held, that the plaintiff was not entitled to any share in the property. On issue No.5, the learned trial Court held, that the land of Inder Singh was gifted away to defendant No.1 on 22.12.1955 vide gift deed Ex.D3. The plaintiff did not challenge the gift deed within the limitation and the suit to challenge the gift deed, was barred by time, but it was held, that the suit for possession, against defendant No.2 was within limitation. Issue No.6 was decided in favour of the plaintiff/appellant for want of any evidence. Similarly, issue No.7 was also decided against the defendants. On issue No.8, it was held, that defendant No.2 was in possession of the suit land since 1976 in pursuance to the sale deed and was enjoying it as owner, openly and to the knowledge of all others, including the plaintiff. Defendant No.1 was also enjoying the property since the date of gift i.e. 22.12.1955. The possession of defendant No.1, was hostile and adverse to the plaintiff, therefore, it was held that defendant No.1 had become owner by way of adverse possession also. Issue No.9 was decided in favour of the plaintiff for want of evidence. Keeping in view the findings recorded, the suit filed by the plaintiff/appellant was dismissed. The learned appellate Court on appeal, reversed the findings on issue No.1, and held the plaintiff to be daughter of Inder Singh. R.S.A. No. 2458 of 1983 (O&M) -6- However, findings on issues No.3, 10 and 11 were upheld, and it was also affirmed, that date of death of Chanan Singh i.e. 1.1.1976 was not proved, and that, on the date of his death he was not owner of the land. The findings on issues No.4, and 8 were affirmed. Consequently, the appeal was also dismissed. Mr. Sanjay Majithia, learned senior counsel, appearing on behalf of the appellant, contended that the appeal raises the following substantial questions of law: - “1. Whether admission by defendant No.1 that Chanan Singh died on 1.1.1976, and denial in not specific form in material particular binds the defendants? 2. Whether sale deed Ex. D2 can be relied upon in absence of proof of passing of balance sale consideration to the vendor Chanan Singh? 3. Whether plaintiff being a natural heir of deceased Inder Singh is bound by any limitation to sue for declaration and possession of the estate of Inder Singh?” In support of the first substantial question of law, the learned senior counsel contended, that the plaintiff/appellant had specifically pleaded, that Chanan Singh had died on 1.1.1976. The averments made by the plaintiff/appellant in the plaint were admitted by defendant No.1, therefore, the fact of death of Chanan Singh stood proved. It was also the contention of the learned senior counsel for the appellant, that even defendant No.2 had not denied this assertion by giving material details, therefore, the denial could not be said to be specific. The contention of the learned senior counsel for the appellant, therefore, was, that the finding recorded by the learned Courts below with regard to death of Chanan Singh, was outcome of misreading of pleadings and evidence, therefore, perverse. It was also contended R.S.A. No. 2458 of 1983 (O&M) -7- that the finding of the learned Courts below on issue No.10, therefore, deserved to be reversed. This contention of the learned senior counsel for the appellant cannot be accepted. The plaintiff/appellant had merely asserted the factum of death of Chanan Singh on 1.1.1976. The object was to show that no sale deed could have been executed by him on the said date in favour of defendant No.2. The fact of death of Chanan Singh on 1.1.1976, was denied by defendant No.2. He also proved on record, the registered sale deed executed in favour of defendant No.2 by proving, the endorsement of the Sub Registrar on the sale deed. There was no evidence whatsoever led by the plaintiff/appellant to prove the death of Chanan Singh on 1.1.1976, therefore, the finding recorded by the learned Courts below on issue No.10 deserves to be upheld. The substantial question of law is answered against the appellant. In support of the second substantial question of law, the learned senior counsel referred to the statement of DW4 to contend, that he failed to prove the passing of consideration for sale. The contention of the learned senior counsel, therefore, was that DW4 Karam Chand, was the attorney of defendant No.2, who was admittedly out of India, but he failed to prove the passing of consideration. The sale deed set up by defendant No.2 to claim ownership, thus, was liable to be rejected, for want of consideration. This plea of the learned senior counsel for the appellant also cannot be accepted, as there is endorsement on the sale deed, showing that Chanan Singh was paid a sum of Rs.12,000/- (Rupees twelve thousand only), at the time of execution of sale deed in presence of the Sub Registrar. The endorsement is duly thumb marked by Chanan Singh. There is no evidence or reason to dis-believe the endorsement of the Sub Registrar, which proved the passing of consideration amount R.S.A. No. 2458 of 1983 (O&M) -8- of Rs.40,000/- (Rupees forty thousand only), i.e. Rs.28,000/- (Rupees twenty eight thousand only) was to be adjusted towards mortgage amount, as the due execution of mortgage deed by deceased Chanan Singh stood proved and balance Rs.12,000/- (Rupees twelve thousand only) was paid before Sub Registrar. The second substantial question of law is also answered against the appellant. On the third substantial question of law, the learned senior counsel for the appellant contended, that the appellant, being the natural heir of the deceased was not bound by limitation, to sue for declaration and possession of the estate of Inder Singh. The learned Courts below committed an error in holding, that appellant was not entitled to inherit the property of Inder Singh. The contention is based on the fact that the learned lower appellate Court, had reversed the finding of the learned trial Court on issue No.1 and the plaintiff/appellant was held to be daughter of Inder Singh, and entitled to natural succession. This plea of the learned senior counsel for the appellant again is mis-conceived. The appellant was non-suited for the reason that the gift deed in favour of defendant No.1 was duly proved. The plaintiff/appellant had failed to challenge the said deed within the period of limitation. It was also proved, that in pursuance to gift deed, defendant No.1 was put in possession and entry was also made in the revenue record showing her to be absolute owner. The learned Courts below, therefore, rightly held, that challenge to gift deed was barred by limitation, and further that, defendant No.1 had perfected her titled by way of adverse possession, as her possession was open and hostile to the appellant. Under the gift deed executed in her favour, which stood proved, showed her to be the owner. Third substantial question of law is also answered against the R.S.A. No. 2458 of 1983 (O&M) -9- appellant. Consequently, this appeal being without any merit is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge January 18, 2010 R.S.