RSA No. 1940 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1940 of 2008 Date of decision: September 1,2008 Rukmani Devi ..Appellant. Versus Sudershan Rani and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. G.S.Toor, Advocate for the appellant. Mr.J.R.Mittal, Sr.Advocate with Mr.Nandan Jindal, Advocate for the respondents. Rakesh Kumar Garg,J. This is plaintiff's Regular Second Appeal challenging the judgments and decrees of the courts below whereby her suit for decree of declaration for 1/5th share in respect of agricultural land as detailed in the head note of the suit to the effect that the plaintiff and defendant Nos.4 to 7 are co-owners and in joint possession of the said suit property and that the mutation No.2730 is illegal, null and void and ineffective qua her ownership rights and suit for a decree of permanent injunction restraining the defendant Nos.1 to 3 from alienating the suit land in any manner was dismissed. It is averred in the civil suit that originally Megh Raj son of Nikkal Ram was owner and in possession of the suit property. Plaintiff No.1 and defendant Nos.4 to 6 are daughters and defendant No.7 is widow and Ashok Kumar was son of Megh Raj, who are entitled to succeed to the estate of Megh Raj after his death. It is alleged that after the death of Ashok Kumar, plaintiff learnt that Ashok Kumar got sanctioned mutation regarding entire estate of deceased Megh Raj in his favour on the basis of forged and fabricated Will in connivance with the revenue official in the absence of the plaintiff in the year 1978. However, Ashok Kumar continued saying that mutation had been sanctioned in favour of all the natural heirs and continued paying Chakota during his life time to her. It is further averred that after the death of Ashok RSA No. 1940 of 2008 2 Kumar in 1998 mutation No.3496 regarding estate of deceased Ashok Kumar was sanctioned in connivance with the revenue officials in favour of defendant Nos.1 to 3 and 7 at the back of the appellant. It is alleged that the mutation of the property in favour of the defendants is illegal and ineffective qua her rights since the defendants have refused to admit her claim, hence the present suit. Defendant Nos.1 to 3 contested the suit taking legal objections to the maintainability and limitation. On merits, it was stated that Ashok Kumar succeeded Megh Raj on the basis of valid Will dated 7.1.1977, the genuineness of which was admitted by the mother and sister by sworning affidavits. The plea that plaintiff came to know about the sanctioning of the mutations after the death of Ashok Kumar is said to be an after thought, as the mutation of the entire estate of Megh Raj in favour of Ashok Kumar was very much in the knowledge of the plaintiff and other members of the family since 29.8.1978. Plaintiff was elder to Ashok Kumar who was minor at that time. It was specifically denied that Ashok Kumar was paying Chakota to the plaintiff. It is also relevant to mention that defendant Nos.4 to 7 admitted the claim of the plaintiffs. The trial Court framed the following issues:- 1. Whether the plaintiff is entitled to decree of declaration as prayed for ?OPP. 2. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ?OPP. 3. Whether originally Meghraj s/o Nikkal Ram was the owner and in possession of the suit property?OPP. 4. Whether the suit of the plaintiff is not maintainable ?OPD. 5. Whether the suit of the plaintiff is time barred ?OPD. 6. Whether the plaintiff has no locus- standi and cause of action to file the present suit ?OPD 7. Relief. The trial Court vide its judgment and decree dated 20.8.2002 dismissed the suit filed by the plaintiff and it was held that the mutation of the RSA No. 1940 of 2008 3 property of Megh Raj was mutated in the name of Ashok Kumar on the basis of the affidavits submitted by defendant Nos.4 to 7 at the time of sanctioning of the mutation in the year 1978 and the plaintiff has filed the present suit after an inordinate delay of 20 years, which has not been explained by her. It was also observed by the trial Court that it cannot be held that mutation in favour of Ashok Kumar was not in the knowledge of the plaintiff. Moreover, Ashok Kumar died in the year 1998, till then he remained as owner and during his life time, the plaintiff never challenged the mutation of property of Megh Raj in his name. The plaintiff filed the appeal challenging the aforesaid judgment of the trial Court. The then Additional District Judge, Sangrur vide his judgment dated 31.5.2004 in Civil Appeal No.56 dated 5.10.2004 framed two additional issues as under:- 1.A Whether the property in the hand of Megh Raj was ancestral property ? OPP 1-B. Whether Megh Raj executed will dated 7.1.77 in favour of Ashok Kumar ?OPA The lower Court was directed to give opportunity to the parties to lead evidence and then to decide these issues in accordance with law. The respondents challenged the said order in this Court vide SAO No.48 of 2004, which was decided on 8.1.2007. The order of the appellate Court was set aside and the trial Court was directed to submit report only, on additional issue Nos.1A and 1B. Civil Judge, Dhuri submitted his report on the above said issues vide his report dated 6.8.2007 holding issue No.1A against the defendants and issue No.1B in favour of contesting defendants. The appellant also filed his objections/appeal against the said report. The lower Appellate Court vide its judgment dated 8.4.2008 dismissed the appeal filed by the plaintiff. The relevant discussion of the lower Appellate Court is reproduced as under:- “ The main point is knowledge of the mutation whether the appellant got knowledge as pleaded in the plaint or had knowledge from the very beginning. The facts and circumstances of RSA No. 1940 of 2008 4 the case are very much relevant and crucial as the pleadings is that Ashok Kumar manipulated the mutation with the connivance of the revenue authorities but whether that thing is made out is also required to be seen because Ashok Kumar was minor at that time and performa respondents, three sisters and mother of Ashok Kumar had got entered the mutation as per evidence on the file, but now they have been kept as performa defendants in the case but no body dared to step into the witness box to deny their presence before the revenue authorities. The court has also observed that the main problem arose after the death of Ashok Kumar. So long he was alive was recorded owner of the property, since 1978 which is evident from the revenue record placed on the record by the contesting defendants. No inference can be raised that Rukhmani Devi had no knowledge about the sanctioning of mutation. Even though she was minor at that time but had attained majority long time back, why kept mum till death of her brother, there is virtually no explanation. Further plea is in the plaint that Ashok Kumar used to pay chakota but that fact has been denied in the written statement. In that event from the statement of Sudarshna Rani that Ashok Kumar used to pay them money, no inference can be raised that he used to pay money treating Rukmani Devi as owner of the land nor the elder sisters or mother stepped into the witness box even in support of Rukmani Devi that Ashok Kumar used to pay money to Rukmani Devi on account of Chakota or they also used to get the same from which inference could be raised that they had no knowledge about the sanctioning of mutation and Ashok Kumar being minor was not in a position to approach the revenue authorities as elders had got entered the mutation he being only son in the family. The above discussion leaves no doubt that the RSA No. 1940 of 2008 5 appellant had knowledge regarding sanctioning of mutation of inheritance of Megh Raj in favour of Ashok Kumar deceased much earlier to the time than the suit she alleges to have got the knowledge. With regard to the point that Sudarshan Rani stated that possession of the land is with the mother in law even if possession of the land may be with the mother in law but Rukmani Devi cannot get any benefit from this point as Sudarshan Rani being owner is deemed to be in possession as co-sharer with her mother in law as after the death of Ashok Kumar inheritance of Ashok Kumar has been sanctioned in favour of Sudarshan Rani and her two daughters and Shanti Devi being mother. With regard to the point that no copy of the will has come on the record nor will came on record, keeping in view the evidence led on the file by Sudarshan Rani party by summoning relevant persons regarding production of which was the private will the witnesses have stated that such papers are retained only for 5 years and only mutation is deposited in the office of Collector and other papers are destroyed. Non leading of evidence regarding any order regarding destruction of miscellaneous papers will not prove that there was no will as the lower Court has discussed in detail every aspect of the case how the elder sisters and mother got entered the mutation in the year 1978 but the suit has been filed after 20 years of the same and only due to the death of Ashok Kumar detail reasons given by the lower court to admit the existence of Will do not call for any interference. With regard to the point that on issue No.1A the court observed that property in the hands of Megh Raj was not ancestral property. The excerpt Ex.D1 shows that the land which had come to Ashok is recorded to be ownership of Leekal Ram father of Megh Raj and vide mutation RSA No. 1940 of 2008 6 No.2071 dated 4.1.58 as noted on third page of the excerpt the mutation of Leekal Ram son of Shobha Ram was sanctioned in favour of Manohar Lal, Kulwant Ram, Vidya Rattan, Kesari Dutt and Megh Raj. Megh Raj is father of Ashok Kumar. Since the property in the hands of Ashok Kumar had become ancestral property having come to him in third degree it is to be held that defendants had not proved that how Leekal Ram got property, whether it has self acquired or had come to him from his forefather. Under the circumstances, issue No.1 is decided with the observations that the property in the hands of Ashok Kumar was ancestral but not in the hands of Megh Raj.” Feeling aggrieved against the judgment and decrees of the courts below, the appellant has filed the present appeal. Shri G.S.Toor, learned counsel for the appellant has vehemently contended that the appellant has been non-suited mainly on the ground that the suit is barred by limitation, which is wrong and illegal and infact, the courts below have misread and misinterpretted the evidence on record to reach this finding. According to him, it is the pleaded case of the appellant that she came to know about the inheritance of Megh Raj in favour of Ashok Kumar itself only on his death as earlier, there was no occasion for her to know the said fact as the said Ashok Kumar used to tell her that mutation has been santioned in favour of all the natural heirs and moreover, she was being paid Chakota by Ashok Kuamr till his death. Therefore, the plea of limitation has been wrongly raised against her. It has been further argued by learned counsel that since admittedly she was minor at the time of mutation of inheritance of Megh Raj in the year 1978. Therefore, the rule of estoppel cannot be pleaded against her to non-suit her. Learned counsel has also stated that genuineness and validity of the Will dated 7.1.1977 has not been proved on record and therefore, mutation sanctioned on the basis of the alleged unregistered Will is not sustainable. On the basis of these submissions, the counsel for the appellant has raised the following RSA No. 1940 of 2008 7 substantial questions of law:- “1. Whether the mutation sanctioned on the basis of the unregistered will is sustainable without there being any finding by the courts below regarding the validity and genuineness of the Will dated 7.1.1977 ? 2. Whether the judgment and decrees of the courts below are perverse and are result of misreading and misinterpretation of the evidence on record ? 3. Whether the suit of the appellant is within limitation ? On the other hand, Shri J.R.Mittal, Sr.Advocate appearing for the respondents has controverted the pleas raised by the appellant and has stated that undisputedly, the appellant was about 17 years of age at the time of sanctioning of mutation in favour of Ashok Kumar in the year 1978, whereas after attaining the age of majority after one year, she kept silent for about 20 years and has challenged the said mutation of inheritance only in the year 1998, i.e., after the death of Ashok Kumar and this fact alone is enough to dis-entitle her from seeking any relief. According to learned counsel for the respondents, the suit is hopelessly time barred as limitation for seeking a relief of declaration is three years and the same could have been filed , at the best, up to the year 1982. It has also been argued by the learned Senior Advocate that there is no evidence on record to establish the fact that Ashok Kumar used to pay her Chakota regularly till his death and therefore, the suit of the plaintiff-appellant has rightly been dismissed. I have heard learned counsel for the parties and perused the record. I find no force in the contentions raised by the counsel for the appellant. From the facts of the case, no inference can be drawn that appellant had no knowledge about the sanctioning of mutation. Even though, she was minor at that time but she had attained majority long time back, and she kept mum till the death of Ashok Kumar. There is virtually no explanation. Her plea that Ashok Kumar used to pay Chakota has been denied in the written statement. Neither RSA No. 1940 of 2008 8 she has produced any receipt/documentary evidence to prove this fact nor she has claimed any such issue before the courts below. Simply because it has come in the statement of Sudarshna Rani defendant that Ashok Kumar used to pay money to the plaintiff, no inference can be raised that he used to pay money treating the appellant as owner of the land. There is one more fact which goes against the appellant that neither the mother nor the elder sisters of Ashok Kumar stepped into the witness box in support of plaintiff. The above discussion leaves no doubt that the appellant had knowledge regarding sanctioning of mutation of inheritance of Megh Raj in favour of Ashok Kumar deceased much earlier to the time of filing the suit, she alleges to have got the knowledge. There is also no merit in the argument of the appellant that no copy of the Will has come on the record and the genuineness and validity of the will has not been proved. DW4 Ajaib Singh Kanungo has stepped into the witness box deposing that he had brought the record of mutation No.2730 vide which the property of Megh Raj was mutated in the name of Ashok Kumar and as per record, Will was admitted and affidavit of defendant Nos.4 to 7 are attached with the mutation. It has also come in evidence that the said record of mutation after sanction used to be deposited with the office of Kanungo and as per practice, they used to keep papers for five years and such papers are destroyed after 5 years. The defendants have also got proved excerpts Ex.D1 and have tendered into evidence Ex.D2 to D-10 to show that the mutations of inheritance were sanctioned as per the procedure. The appellant has not challenged the version of Revenue Department. In view of the categoric findings given by the courts below to the effect that the suit is hopelessly time barred as the appellant was having the knowledge of sanctioning of mutation in favour of Ashok Kumar. No substantial question of law arises for determination of this Court. No merit. Dismissed. September1 , 2008 (RAKESH KUMAR GARG) nk JUDGE