RSA No.2535 of 1980 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2535 of 1980 (O&M) Date of decision: 26.3.2010 Smt. Phuli and another ............Appellants Versus Pala Ram and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. M.S. Khaira, Sr. Advocate with Mr. B.S. Sewak, Advocate, Mr. H.S. Sharma, Advocate and Mr. Dharminder Singh, Advocate for the appellants. Mr. R.S. Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the respondents. 1. Whether Reporters of local papers 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? ALOK SINGH, J. (ORAL) 1. The defendants No.1 and 3 preferred present second appeal assailing the judgment and decree dated 19.9.1980 passed by the first Appellate Court/Addl. District Judge, Karnal, thereby allowing the appeal filed by the plaintiffs and decreeing the suit of the plaintiffs for declaration to the effect that the plaintiffs are the owners of the land in dispute, being the only heirs of Mokh Ram (deceased) RSA No.2535 of 1980 (O&M) -2- together with decree for possession of the land in question against the defendants. 2. The brief facts of the present case are that plaintiffs claiming to be legal heirs of Mokh Ram (deceased) filed suit for declaration, injunction and alternatively for possession against the defendants inter-alia alleging that Mokh Ram died issueless and Krishna was his first cousin. Hence, being sons of Krishna they have inherited the estate of Mokh Ram (deceased). 3. The claim of the plaintiffs are that defendant No.1 Smt. Phuli got the mutation done illegally over the estate of Mokh Ram (deceased) with the collusion of other defendants. 4. Defendants No.1 and 3 contested the suit. The main defense taken was that Smt. Phuli was wife of Mokh Ram (deceased); Smt. Phuli and Mokh Ram (deceased) entered into karewa type of marriage prevailing in the Jat community and being widow of Mokh Ram (deceased) Smt. Phuli was the only legal heir; Smt. Phuli had leased out the property in dispute in favour of other defendants i.e. defendants No.2 and 3. 5. Learned trial Court dismissed the suit of the plaintiffs having observed that remarriage of Smt. Phuli with Mokh Ram (deceased) is proved and being widow of Mokh Ram (deceased), Smt. Phuli is entitled to remain in possession. 6. However, learned first Appellate Court reversed the judgment of the learned trial Court and decreed the suit for declaration and possession against the defendants. Learned first Appellate Court observed that alleged karewa marriage is not proved RSA No.2535 of 1980 (O&M) -3- on the record; Smt. Phuli herself did not make any statement on oath about the alleged karewa; both the attesting witnesses of alleged karewa were not produced as witnesses to prove the alleged karewa; Datu and Sardara who were allegedly present at the time of alleged karewa marriage were also not produced as witnesses although they were alived at that particular time; alleged karewa marriage was not performed in the village and was alleged to be performed in the Court. Learned first Appellate Court recorded clear cut finding of fact that factum of alleged marriage of Smt. Phuli with Mokh Ram (deceased) is not proved. However, learned first Appellate Court observed that defendant No.3 is in possession of the property, hence, granted decree for possession. 7. This Court vide judgment dated 18.9.2001 dismissed the second appeal. However, judgment of this Court dated 18.9.2001 was challenged before the Hon’ble Apex Court. The Hon’ble Apex Court vide judgment dated 26.2.2009 allowed the Civil Appeal No.8581 of 2001 and has observed as under:- “Having heard learned Counsel for the parties and having gone through the judgment of the High Court whereby and where under R.S.A. No.2535/1980 filed by Tek Chand Nambardar and deceased Smt. Phulli, who is stated to have died in the year 1987, was dismissed without formulating any substantial question of law and without giving reasons whatsoever. The judgment of the High Court reads thus: Learned Counsel for the plaintiff- respondents has made a statement that RSA No.2535 of 1980 (O&M) -4- the appellant-Phulli died somewhere in the year 1987 and on account of the non-bringing on record her legal representatives, the appeal has abated. Learned Counsel for the appellants is not in a position to rebut the above statement. However, since this appeal is being dismissed on merits, no further order on this aspect is required. In our view, the order of the dismissal of the R.S.A., in a slip shod manner without framing the substantial question of law, if any, and by unreasoned judgment, cannot be legally sustained. In that view of the matter, the judgment of the High Court dated 18.9.2001 is set aside, as a result thereof, the R.S.A. No.2535/1980 shall stand revived on the file of the High Court. The said appeal shall be decided by the High Court afresh on merits after giving an opportunity of hearing to the learned Counsel for the parties. The name of Smt. Phulli (since deceased) who was arrayed as respondent No.3 before this Court has been ordered to be deleted at the request of the appellant. The High Court while deciding the second appeal afresh shall also consider the effect of non-bringing on record the legal representatives of deceased Phulli. The appeal stands allowed in the aforesaid terms. No order as to costs. Since, the second appeal pertains to the year 1980, we request the High Court to expedite the hearing of the same. RSA No.2535 of 1980 (O&M) -5- Sd/- (Lokeshwar Singh Patta) Sd/- (B. Sudershan Reddy) New Delhi February 26, 2009” 8. Undisputedly, appellant No.1 – Smt. Phuli has expired. Smt. Phuli was claiming herself to be widow of Mokh Ram (deceased). Undisputedly, Pala Ram and Balwant Singh, the original plaintiffs, would have inherited the estate of Mokh Ram (deceased) being legal heirs in normal course. Mr. M.S. Khaira, Sr. Advocate assisted by Mr. H.S. Sharma, Advocate appearing for the appellants fairly stated that Smt. Phuli died issueless and in that event also after the death of Smt. Phuli original plaintiffs are entitled to inherit the estate of Mokh Ram (deceased). 9. Mr. M.S. Khaira, Senior Advocate appearing for the appellants further argued that since Smt. Phuli had executed the lease deed in favour of appellant No.2, hence, appellant No.2 is entitled to proceed with the appeal and is legally entitled to challenge the finding of the learned first Appellate Court on the question of factum of marriage with Mokh Ram (deceased). Mr. M.S. Khaira, learned Counsel for the appellants further submitted that in the present appeal, the only substantial question of law arises for consideration of this Court is :- As to whether karewa marriage of Smt. Phuli with Mokh Ram (deceased) is proved in view of the fact that Smt. Phuli used to live RSA No.2535 of 1980 (O&M) -6- with him for more than 25 years as a wife? 10. Mr. M.S. Khaira, Sr. Advocate has placed reliance on certain judgments to say there is a custom in the Jat permitting remarriage during the lifetime of first husband. 11. Mr. R.S. Mittal, Sr. Advocate assisted by Mr. Atul Gaur, Advocate, appearing for the respondents, however, argued that in fact no substantial question of law arises for the consideration of this Court and the finding of the first Appellate Court on the question of factum of karewa/re-marriage cannot be disturbed while invoking jurisdiction under Section 100 C.P.C. 12. Undisputedly, Smt. Phuli – appellant No.1, has expired living behind no legal representative. Undisputedly, lis between the plaintiffs and defendant No.1 was who would inherit the properties of Mokh Ram (deceased). Undisputedly, even after the death of Smt. Phuli, plaintiffs would inherit the estate of Mokh Ram (deceased). Undisputedly, appellant No. 2 is not legal heir of Smt. Phuli (deceased). Since, estate of Mokh Ram (deceased) would go to plaintiffs. Appellant No.2 is not claiming himself to be legal heir either of Smt. Phuli or of Mokh Ram (deceased), whose inheritance is in question, hence, appeal on behalf of Smt. Phuli stands abated. 13. Since, appellant No.2 is claiming himself lessee of appellant No.1, hence, appellant No.2 was heard in this appeal. 14. Question of custom has become irrelevant in view of the finding of fact recorded by first Appellate Court disbelieving the factum of marriage. RSA No.2535 of 1980 (O&M) -7- 15. First Appellate Court has recorded clear cut finding of fact that alleged karewa and karewa deed is not proved on record because :- (i) Smt. Phuli herself did not make any statement on oath pertaining to the contents of karewa. (ii) Attesting witnesses of karewa deed were not produced. (iii) Alleged witnesses of the karewa i.e. Datu and Sardara although alive were not examined in support of karewa, hence, adverse inference would be drawn against Smt. Phuli. 16. No illegality or perversity is pointed out in the finding of fact recorded by first Appellate Court. First Appellate Court has not recorded any finding on the question as to whether Smt. Phuli was living with Mokh Ram (deceased) right from the year 1956 as alleged by the defendants. There is no evidence available on this aspect. Ordinarily, findings of fact recorded by first Appellate Court cannot be disturbed by this Court. 17. While exercising jurisdiction under Section 100 C.P.C., finding of the fact recorded by Court below cannot be disturbed in the absence of any substantial question of law. Question of remarriage/karewa of Smt. Phuli with Mokh Ram (deceased) is a question of fact. In my opinion, no substantial question of law arises in the present appeal. 18. The appeal is devoid of merit. Hence, the second is dismissed with no order as to costs. RSA No.2535 of 1980 (O&M) -8- ( ALOK SINGH ) 26.03.2010 JUDGE ashish