RSA No.4174 of 2002 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 6840-C of 2005 and RSA No. 4174 of 2002 (O&M) Date of Decision: July 31, 2009 Jatinder Singh and others ...... Appellants Versus Mehar Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. S.D.Bansal, Advocate for the appellants. Mr. Sarwan Singh, Senior Advocate with Mr. N.S.Rapri, Advocate for all the respondents except respondent No.8. **** 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? Ajay Tewari, J. This appeal has been filed against the judgment of the learned lower Appellate Court accepting the appeal of the respondents and thus dismissing the suit filed by the appellants claiming a declaration that they were co-owners of the land left behind by Puran Singh along with the respondents and for a consequential relief of possession, mesne profits and permanent injunction. The trial court decreed the suit holding that the father of the appellants was proved to be the son of Puran Singh and that thus the appellants were entitled to inherit his estate along with his other sons. The RSA No.4174 of 2002 (O&M) 2 learned lower Appellate Court, however, held that the father of the appellants had filed a similar suit which had ended in a compromise in which he had stated that he was agreeing to the compromise since he could not prove that he was a son of Puran Singh. He also filed another suit thereafter on the same cause of action which was dismissed in default. Thus, the learned lower Appellate Court accepted the appeal and consequently dismissed the suit. Along with the present appeal the appellants have filed an application for additional evidence seeking to produce on record certain documents which according to them prove their assertion that indeed their father was one of the sons of Puran Singh deceased. The documents now sought to be proved are: (i) certified copy of the Army Service Record of their father (ii) copy of voter list for the year 1982, (iii) copy of house tax receipt of 1999, copies of Chowkidara receipts as well as voter identity card and (iv) ration card. To get over the bar of Order 41 Rule 27 CPC learned counsel for the appellants has argued that their father was inimically disposed towards them and it was only now that he had been persuaded to hand over these documents. In my opinion, firstly the reason given by the appellants for not being able to present these documents in evidence at the relevant time does not hold water. These documents are public documents(except for the Chowkidara receipts) and they could have easily been procured by the appellants. Thus, I am constrained to reject the application under Order 41 Rule 27 CPC. It is also to be noticed that all these documents are based on the information given by their father. No birth certificate or school certificate has been sought to be paced on the record. Thus, the probative RSA No.4174 of 2002 (O&M) 3 value of these documents can in any case not be deemed to be conclusive proof of their father's pedigree. The following questions have been proposed:- 1) Whether the judgment and decree dated 18.9.2001 passed by the learned Civil Judge (J.D.), Ambala is based on true facts and correct assessment of the evidence? 2) Whether the judgment and decree dated 24.8.2002 passed by the learned lower Appellate Court is illegal, against the evidence and the same is based on mere conjectures and surmises? 3) Whether the learned lower Appellate Court has failed to appreciate the evidence produced by the appellants? 4) Whether the appellants have proved beyond any scope of doubt that Ujaggar Singh is the son of late Puran Singh. 5) Whether the appellants have proved the property to be ancestral property in the hands of Puran Singh? 6) Whether the compromise and collusive decrees can be said to have any binding effect on the appellants? 7) Whether the impugned sale deed,mutations etc. in favour of respondents No.9 and 10 are sustainable especially when the appellants have been able to prove their case thoroughly? 8) Whether any injustice has been done to the appellants? It would be seen that all the questions except question No. 6 are pure questions of fact. These questions of fact all hinge around the central dispute viz. whether Ujagar Singh was the son of Puran Singh. Learned counsel for the appellants has taken me through the evidence and the RSA No.4174 of 2002 (O&M) 4 findings of the learned lower Appellate Court but he has not been able to persuade me that the said findings are either based on no evidence or are based on such misreading of evidence so as to render the same perverse. The learned lower Appellate Court has rightly pleaded that the best evidence was father of the appellants who was a party but he was not produced. Even if it is accepted (though highly unlikely) that their father Ujagar Singh is inimically disposed towards them yet they could have produced their aunt Charno who as per their case was the real sister of their father. The learned lower Appellate Court has rightly held that on the evidence which was produced it could not be held that the paternity of Ujagar Singh had been conclusively proved. In this view of the matter question No.(6) does not arise. Consequently this appeal is dismissed. No costs. Since the main case has been decided, all the pending Civil Misc. Applications are disposed of. (AJAY TEWARI) JUDGE July 31, 2009 sunita