RSA No. 2468 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2468 of 1987 (O&M) Date of decision: September 24, 2010 Smt. Kailash Wati ...Appellant Versus Smt. Kartaro and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Ms. Alka Sarin, Advocate, for the appellant. Mr. Malkeet Singh, Advocate, for the respondents. GURDEV SINGH, J. The plaintiff/appellant-Kailash Wati filed civil suit for separate possession by partition of the house in dispute situated in Mohalla Araian, Khanpuri Gate, Hoshiarpur, fully detailed in the heading of the plaint and marked as A B C D E F in the site plan attached with it. The plaintiff pleaded in that plaint that Ralla son of Chanan Ram was the owner of the house in dispute, who had two sons, Joginder Pal and Ghugi and one daughter Parkash Wati. Kartaro-defendant No.1 was married to Joginder Pal and other defendants are their sons and daughters. Ralla had mortgaged western portion of this house marked as A X Y F in the site plan with Sadhu Ram and others in the year 1948. In the year 1951, Parkash Wati @ Parkash Devi purchased the mortgagee rights. Ralla died in the year 1959 and the RSA No. 2468 of 1987 2 house was inherited in equal share by his both sons and the daughter. After his death, Joginder Pal redeemed the portion of the house, which was so mortgaged from Parkash Wati and further mortgaged that portion with one Gauran widow of Rakha Ram, vide registered mortgage deed dated 4.10.1974. Parkash Wati had inducted Parabh Dayal as tenant in that portion of the house and after redemption Ghugi died widowless and issueless in the year 1976 and his share in the house devolved upon Joginder Pal and Parkash Wati. Joginder Pal died on 14.8.1979 and his share in the house developed upon the defendants as his natural heirs. Parkash Wati had 1/2 share in this land which was sold by her in her (plaintiff's) favour, vide sale deed dated 18..2.1983 for a consideration of ` 3,000/-. At that time, Parab Dayal was a tenant in chobara under Parkash Wati and he attorned the tenancy to her and, thus, she is in constructive possession of that chobara through that tenant. She did not want to keep the house as joint and, as such, she filed suit for partition of her 1/2 share by way of partition. The suit was contested by the defendants. In their written statement, they admitted that they are the natural legal representatives of Joginder Pal and succeeded to his estate after his death on 14.8.1979. They also admitted that Ralla was father of Joginder Pal, Ghogi and Parkash Wati. They denied the other contentions made in the plaint and, inter-alia, pleaded that Joginder Pal was the sole owner of the house in dispute, which fact was stated by him in the mortgage deed executed on 14.1.1974 in favour of Gauran. Parabh Dayal was never a tenant in this house and that very question was raised in the previous suit and a finding was recorded to the contrary. No part of the house in dispute was sold to the plaintiff by RSA No. 2468 of 1987 3 Parkash Wati and even if any such sale deed was executed, it does not create any right in favour of the plaintiff as Parkash Wati was never the owner of this house. In the previous suit, this sale deed was held to be fraudulent one and that question cannot be re-agitated in the present suit. In fact, Parabh Dayal is the husband of the plaintiff and is residing with her. The present suit does not lie at all and the plaintiff is estopped from filing the same by her own act and conduct. The same has been filed with an ulterior motive to delay the matter so that they may not be able to get possession of this house. In replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated her averments made in the plaint. She also pleaded that in the previous suit for redemption, there was no issue regarding the sale of the share of Parkash Wati in her favour and no such finding that the sale deed was a fraudulent document was recorded. On the pleading of the parties the following issues were framed by the trial court:- “1. Whether the plaintiff is joint owner of the suit property, if so upto what extent ? 2. Whether plaintiff is entitled to the partition of the suit property ? 3. Whether the plaintiff is estopped from filing this suit by her act and conduct ? 4. Relief.” To succeed in the suit, the plaintiff examined Avtar Chand (PW-1), Kewal Krishan (PW-2), Mehnga Ram (PW-3), Brij Mohan (PW- 3/A), Bipan Kumar (PW-4) and Hari Singh (PW-5). On the other hand, RSA No. 2468 of 1987 4 Kartaro-defendant No.1 herself entered into the witness box as DW-1. After going through the evidence so produced on the record and hearing learned counsel for both the sides, the trial court decided all the issues in favour of the plaintiff and resultantly, decreed her suit, vide judgment and decree dated 7.12.1985. The defendants preferred appeal against the said judgment and decree, which was accepted by the District Judge, Hoshiarpur, vide judgment and decree dated 4.6.1987 and the suit of the plaintiff was dismissed. The present second appeal has been preferred by the plaintiff in which she has prayed for setting aside of the judgment of the first appellate court on the grounds of its being illegal, unjust, improper and not warranted by the evidence on record, in view of the grounds of appeal. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the plaintiff that there is total misreading of evidence by the first appellate court, while recording the finding against the plaintiff thereby upsetting the well reasoned finding recorded in her favour by the trial court. The trustworthy evidence produced by the plaintiff that the house in dispute was owned by Ralla which after his death was inherited by his two sons Joginder Pal and Ghugi and one daughter; namely, Parkash Wati, was ignored by the first appellate court without assigning any reason and the clear cut admission made by defendant No. 1 to that effect was twisted and by throwing to winds the provisions of Evidence Act, a finding was recorded that Joginder Pal was the exclusive owner of the house in dispute. Besides oral evidence, even the documentary evidence suggests that Parkash Wati also inherited RSA No. 2468 of 1987 5 1/2 share which included 1/6th share inherited after the death of her brother Ghugi. She purchased the mortgagee rights from the previous mortgagor in whose favour this house was mortgaged by the original owner—Ralla. All that documentary evidence was ignored by the first appellate court for recording illegal finding in favour of the defendant. When there is total misreading of evidence and the findings recorded by first appellate court are apparently against the law, those are liable to be set aside and accordingly, the judgment and decree of the first appellate court are liable to be set aside. On the other hand, it has been submitted by the learned counsel for the respondents that there is no such misreading of evidence by the first appellate court nor the findings recorded by it can be said to be perverse as in the mortgage deed, so executed by Joginder Pal, Parkash Wati admitted in so many words that he was the exclusive owner. On the basis of that evidence, a correct finding was recorded by the first appellate court that Joginder Pal was the exclusive owner and, as such, it cannot be held that the plaintiff has got 1/2 share in that house, even if she was successful in proving that the sale deed Ex. P.1 was executed in her favour by Parkash Wati. In order to succeed, the plaintiff was required to prove that Parkash Wati had 1/2 share in the house in dispute. For that she was required to prove that the house in dispute was originally owned by Ralla and after his death the same was inherited in equal share by his sons Joginder Pal and Ghugi and daughter Parkash Wati and Ghugi died widowless and issueless and Joginder Pal and Parkash Wati succeeded to his share also in equal shares. Unimpeachable evidence was produced by the plaintiff to prove all these facts. It was stated by Mehnga Ram (PW-3) RSA No. 2468 of 1987 6 that Ralla Ram was known to him, who had two sons Joginder Pal and Ghugi and one daughter Parkash Wati. After his death his estate was inherited by all of them in equal shares. The statement of this witness was fully corroborated by Kewal Krishan (PW-2). In addition to that, he also stated that Parkash Wati had inherited 1/2 share in the house in dispute after the death of her father and brother Ghugi, who died widowless and issueless. Confidence is inspired in the evidence so produced by the plaintiff, in view of the admission made by defendant No.1 herself. During her cross-examination, she admitted the relationship of Parkash Wati with Ralla. She also admitted that the house in dispute was inherited by her husband from his own father. The first appellate court tried to twist that admission so made by this witness by incorporating in the judgment that the same does not imply that this house devolved upon the other legal representatives also by way of inheritance. It is not the case of the defendants that any Will was executed by Ralla in favour of Joginder Pal during his life time and it is very much clear from the pleadings of the parties that he had died intestate. In these circumstances, this house was to devolve upon all the three legal heirs left by Ralla, in equal shares. The fact that Joginder Pal was not the exclusive owner of this house is very much clear from the documentary evidence produced by the plaintiff. She produced on record the mortgage deed Ex. PZ which was executed in the year 1951. This document being 30 years old and coming from proper custody, is presumed to have been duly executed, in view of the provisions of Section 90 of the Evidence Act. Vide this deed, Parkash Wati purchased the mortgagee rights from the previous mortgagor to whom the house stood mortgaged by Ralla. The fact that Joginder Pal got redeemed this house RSA No. 2468 of 1987 7 from Parkash Wati is very much clear from the mortgage deed proved on record as Ex. D.1 by the defendants themselves. Vide this mortgage deed, Joginder Pal mortgaged the house in dispute in favour of Gauran for ` 4,000/-, in which he specifically mentioned that out of that ` 3400/- had been kept for payment to Parkasho Devi who had purchased the mortgagee rights. Learned counsel for the defendants has tired to make use of the admission contained in this document. It is mentioned therein that Joginder Pal is the owner of this house. That admission in favour of Joginder Pal was admissible against the other party and the defendants, who are his successors-in-interest, cannot use that admission as evidence in their favour. The admission made by a person in his own favour is not admissible. The first appellate court misread the evidence and by twisting the admission made by defendant No.1 recorded a wrong finding against the plaintiff that Parkash Wati was not having 1/2 share in the house in dispute, thereby upsetting the well reasoned finding recorded by the trial court that Parkash Wati was having 1/2 share in this house. The sale deed Ex. P.1 in favour of the plaintiff, which was executed by Parkash Wati has been duly proved by Kewal Krishan (PW-2) and Brij Mohan (PW-3/A), who are the attesting witnesses of the sale deed. Vide this sale deed, Parkash Wati sold her 1/2 share in this property in favour of the plaintiff and, thus, she became owner of the house in dispute to the extent of 1/2 share. Thus, she is entitled to get 1/2 share separated by way of partition. In view of the above discussion, this appeal is hereby accepted. The judgment and decree of the first appellate court is set aside and that of trial court is restored and upheld. The plaintiff is entitled to 1/2 share in RSA No. 2468 of 1987 8 the house in dispute by way of partition. Preliminary decree be drawn accordingly. September 24, 2010 (GURDEV SINGH ) prem JUDGE