RSA No.2336 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2336 of 2009 (O&M) Date of Decision: 28.10.2009 Jai Bhagwan and another .....Appellants Vs. Krishna and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Ashish Aggarwal, Advocate for the appellants. .... RAJIVE BHALLA, J (Oral) CM No.6955-C of 2009 For the reasons stated in the application, the delay of 50 days in refiling the appeal is condoned. C.M. stands disposed of accordingly. RSA No.2336 of 2009 The appellants challenge the judgement and decree dated 23.8.2008, passed by the Additional District Judge, Panipat, accepting the appeal filed by the respondents, setting aside the judgement and decree dated 1.12.2005, passed by the Additional Civil Judge (Senior Division), Panipat, and as a consequence dismissing the suit filed by the appellants. The plaintiff/appellants filed a suit for declaration and for a consequential relief of permanent injunction by alleging that the respondents are not entitled to succeed to the estate of Mai Chand, as they RSA No.2336 of 2009 2 are the children of Jugga Ram and Om Parkash respectively. It was further prayed that Mutation No.1412 that has been wrongly sanctioned should be set aside. In response, the respondents denied the averments in the plaint, pleaded that they are children of Mai Chand from his first wife Sarti Devi. After the demise of Sarti Devi, their father Mai Chand married Bhuro Devi, the mother of the appellants. The trial court decreed the suit by holding that the respondents have failed to adduce any evidence to establish that they are the children of Mai Chand. As a consequence, the trial court set aside Mutation No.1412. Aggrieved by the aforementioned judgement and decree, the respondents filed an appeal. The first appellate court accepted the appeal, set aside the judgement and decree passed by the trial court and held that as the appellants have failed to produce any evidence, in support of their positive assertion that the respondents are not the children of Mai Chand, their suit has to be dismissed. As a result, the appeal was allowed and the judgement and decree passed by the trial court was set aside. Counsel for the appellants submits that the oral deposition of the appellants and their witnesses remain unchallenged. The respondents have not led any evidence to disprove these facts by stepping into the witness box. The first appellate court, therefore, committed an error in dismissing the suit. I have heard learned counsel for the appellants, considered the judgement and decree passed by the Additional District Judge, Panipat and express my inability to hold that the impugned judgement suffers from any error of law or that any substantial question of law arises for consideration. RSA No.2336 of 2009 3 The positive case set up by the appellants, is that they are the children of Mai Chand, whereas the respondents are the children of Jugga Ram and Om Parkash. The appellants have admittedly failed to adduce any evidence in support of these averments, apart from their self serving oral statements. The onus to prove these facts lay upon the appellants and not upon the respondents. The trial court, therefore, committed an error in placing the onus upon the respondents and holding that as they have failed to prove their paternity, the suit has to be decreed. The first appellate court rightly rectified this error and held that in the absence of any material or evidence, the oral deposition of the appellants cannot be accepted to hold that the respondents are not the children of Mai Chand. The appellants could have produced birth certificates, school leaving certificates, ration card or similar documents to establish that the respondents are not the children of Mai Chand. It would also be necessary to mention here that when Mutation No.1412 was sanctioned and the property of Mai Chand was mutated in the names of the parties as the children of Mai Chand, Aman Kumar, a brother of the appellants was present. However, he did not raise any objection. It was for this reason that Aman Kumar was arrayed as defendant no.5 and did not come forward to contest the suit. In view of what has been stated herein above, as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. 28.10.2009 (RAJIVE BHALLA) GS JUDGE