RSA No.1906 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1906 of 2011 (O&M) Date of Decision: 07 .11.2011 Jai Singh ...Appellant Vs. Dalel Singh & Ors. Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Nilesh Bhardwaj, Advocate, for the appellant. --- A.N.Jindal, J. CM No.5354-C & 5355-C of 2011 For the reasons stated in the applications, the same are allowed and the delay in filing and re-filing the appeal is condoned. RSA No.1906 of 2011 The plaintiff/appellant (herein referred as the plaintiff) filed a suit for declaration claiming himself to be the owner of 1/4th share in the total land measuring 272 kanals 2 marlas on the basis of inheritance which devolved from Smt. Bakhtawari daughter of Jota. The trial court vide judgment dated 13.06.2008 had dismissed the RSA No.1906 of 2011 2 suit. Additional District Judge, Karnal had also dismissed the appeal on 17.05.2010. The facts in nutshell are that plaintiff and defendant No.2 namely Dalel Singh and Smt. Savitri Devi are related to each other. According to the plaintiff, Jota had two sons namely Bodha alias Lachhman, Singha and a daughter Smt. Bakhtawari. The plaintiff is the son of Smt. Bakhtawari. Singha predeceased Smt. Bakhtawari and on her death, Smt. Bakhtawari became owner of 1/4th share while Bodha alias Lachhman became owner of 3/4th share by way of natural succession. Bakhtawari died on 1.6.1998. Thereafter the plaintiff came to know that Bodha had got mutations of whole of the land sanctioned in his name. Further defendant No.10 Inder Singh had obtained a collusive decree dated 3.2.1978 passed in civil suit No.146 of 1978 from Bodha qua 43 kanals 15 marlas of land. Bodha had died in the year 1983, whereafter mutation with regard to his inheritance was sanctioned in favour of defendants No.1 and 2 qua the land measuring 228 kanals 3 marlas. Inder Singh defendant No.10, Ram Chander (grand-father of defendant No.1) and Basanta father of defendants No.12 to 16 and husband of defendant No.16 succeeded in obtaining the decree dated 4.08.1984 in their favour in civil suit No.879 of 1984 regarding which mutation No.404 was sanctioned in their favour as per their respective shares. Smt.Kreshni alias Kreshni Devi wife of defendant No.3 and mother of defendants No.4 to 9 instituted a civil suit No.687 of 1985 on the basis of decree dated 12.12.1987 passed in her favour whereby she RSA No.1906 of 2011 3 was held entitled to 1/3rd share in the land measuring 228 kanals 3 marlas. While assailing aforesaid judgment and decree being illegal and void, the plaintiff has claimed 1/4th share in the suit land. While contesting the suit, the defendants No.1, 2 and 10 to 17 denied if the plaintiff was neither related to the defendants nor related to Singha and Bodha. It was also alleged that earlier, in the suit instituted by Kreshni wife of defendant No.3, the plaintiff/ appellant had appeared as a witness and deposed that Jota had two sons namely Lachhman alias Bodha and Singha but he did not state that Bakhtawari was the daughter of Jota. The plaintiff was in full knowledge of the decrees dated 3.2.1978 and 4.4.1984 from the very inception and deliberately remained silent. Neither the plaintiff nor Bakhtawari ever remained in possession of the suit property. Defendants No.3 to 6 in their joint written statement stated that the plaintiff was colluding with defendants No.1,2 and 10 to 17. It was clarified that previously Kreshni Devi wife of defendant No.3 had instituted a suit titled as Kreshni Devi Vs. Dalel Singh and others which was decreed on 12.12.1987 in which she had challenged the decree dated 4.8.1984 in favour of Inder Singh and others, thus, the claim of the plaintiff was time barred and the suit further suffered from non-joinder of necessary parties. It was also pleaded that Smt,.Bakhtawari neither related to Singha nor Bodha as such she was not entitled to any property. She was not the daughter of Jota but was daughter of one Geeta, who was stranger RSA No.1906 of 2011 4 to the suit property. Bakhtawari who died in the year 1998 never claimed any right in the suit property. Following issues emanated from the pleadings of the parties:- 1. Whether the plaintiff is entitled to a decree for declaration, as prayed for? OPP 2. Whether the suit of the plaintiff is hopelessly time barred? OPD 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD 5. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 7. Relief. Both the parties led evidence. Plaintiff in order to prove his case examined Jai Singh (PW 1), Hirdas Ram (PW 2), Des Raj (PW 3), Suresh Kumar (PW 4), Jai Parkash, ADRK (PW5), Om Parkash, Advocate (PW 6) and Rama Kant Sharma,Advocate (PW 7) On the other hand, defendants examined Lakhpat (DW 1), Puran Singh (DW 2) and Surat Singh (DW 3). Trial Court while holding that Smt. Bakhtawari is not proved to be the daughter of Jota and sister of Singha and RSA No.1906 of 2011 5 Lachhman alias Bodha and she was having no right, title or interest in the suit property, consequently, the plaintiff, being not held to be the son of Bakhtawari had no right in the suit land. The court while further holding that suit is barred by limitation dismissed the suit. Appeal preferred by the plaintiff also met the same fate. There is no dispute with the fact that since the very beginning the land is recorded in the name of Singha and Bodha both sons of Jota, in equal shares. It has also not been disputed that Singha died unmarried and issueless and his share in the land devolved upon his legal heirs. It has been seriously contended that Smt. Bakhtawari was the daughter of Jota, therefore, after the death of Singha, Smt. Bakhtawari became owner of 1/4th share, whereas Bodha became the owner of 3/4th share as per the law prevailing at that time. But no valid evidence has been led by the plaintiff in order to substantiate his claim. Principally, relationship between the parties is to be proved in two ways – either by un-rebutted documentary evidence, public or private or by examining the relation witnesses acquainted with the family, dealing or seeing the family members dealing them as such, as provided under Section 50 of the Indian evidence Act. No voter list, ration card, identity card indicating Smt. Bakhtawari to be the daughter of Jota has been produced on record. The plaintiff has placed on record birth certificate Ex.P.9 which indicates that a daughter was born to Jota on 17.8.1989. Said birth certificate does not bear the name of Smt.Bakhtawari. No oral or documentary RSA No.1906 of 2011 6 evidence has been produced on record to connect the document with Bakhtawari. Even if some evidence has been produced which could synchronise with the age of Smt. Bakhtawari then the court could reach some conclusion but no such iota of evidence has been led on record. The plaintiff has claimed that defendants No.1 and 2 are directly related to him but none of them has been examined to prove this fact. Now coming to the oral evidence, the plaintiff claims himself to be the resident of Bhaini Khurd where Smt. Bakhtawari was married but none from Bhaini Khurd has been examined. No such relative who was acquainted or closely related to the family has been examined to prove the relationship of Smt. Bakhtawari with Jota Singh. The onus to prove the relationship was upon the plaintiff but he has badly failed to prove and shift the onus. Though the plaintiff, while appearing as PW 1, reiterated the allegations yet during the cross examination, when a specific question was put to him about his relationship with Jota he responded that Geeta was his grand-father. It has also come in evidence that Smt. Bakhtawari had another son namely Daulat Ram but he was also not examined. Thus, in the absence of any evidence and admission made by the plaintiff that Smt. Bakhtawari was not the daughter of Jota it would be difficult to hold that she or the plaintiff were having any right, title or interest in the suit property. No other argument has been advanced in order to support the claim on behalf of the appellant. RSA No.1906 of 2011 7 As such this would have to be unhesitatingly held that the findings recorded by the courts below qua all the issues are well reasoned and have to be affirmed. No question of law much less substantial question of law arises for determination in this regular second appeal. Dismissed. (A.N.Jindal) 7.11.2011 Judge rp