IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 330 of 2011-E. Reserved on: 06.12.2011. Decided on: 16.12.2011. ______________________________________________ Kehar Singh son of Shri Lachhman Dass son of late Shri Rao, resident of village Suddar, Tappa Dhatwal, Tehsil Badsar, District Hamirpur, Himachal Pradesh . … Appellant. Versus 1. Amar Singh son of Shri Lachhman Dass, resident of village Suddar, Tappa Dhatwal, Tehsil Badsar, District Hamirpur, Himachal Pradesh. 2. Amro Devi daughter of Shri Lachhman Dass wife of Shri Sohan Singh, resident of village Beri, Post Office Karkhar, Tehsil and District Bilaspur, Himachal Pradesh. 3. Krishna Devi daughter of Shri Lachhman Dass wife of Shri Het Ram, resident of village Beri, Post Office Karkhar, Tehsil and District Bilaspur, Himachal Pradesh. 4. Surinder Kumar son of Shri Amar Singh. 5. Vinod Kumar son of Shri Kehar Singh, both residents of village Suddar, Tappa Dhatwal, Tehsil Badsar, District Hamirpur, Himachal Pradesh. …. Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Diwan Singh, Advocate vice Mr. Vinay Kuthiala, Advocate. For the Respondents : None for respondents No.1 to 4. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - Mr. Gaurav Sharma, Advocate for respondent No.5. Justice Rajiv Sharma, J.: This regular second appeal is directed against the judgment and decree dated 31.3.2011 passed by the learned Additional District Judge (Fast Track Court), Hamirpur in Civil Appeal No.48 of 2010. 2. Material facts necessary for adjudication of this regular second appeal are that the plaintiff/appellant (hereinafter referred to as “the plaintiff” for convenience sake) has filed a suit seeking declaration to the effect that he was joint owner in possession to the extent of ½ share of land comprised in Khata No.10, Khatauni No.17, Khasra Nos. 40, 72, 101, 269, 271, 293, 319, 333, 334, 336, 406, 407, 455, 456, 457, 458, 468, 469, 580, 736, 737, 760 and 761, land measuring 1-09-40 hectares as per Jamabandi for the year 2000-2001 situate in Tikka Suddar, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as “the suit land” for convenience sake) along with respondent/defendant No.1 (hereinafter referred to as “defendant No.1” for convenience sake) and the other respondents/defendants (hereinafter referred to as “the defendants” for convenience sake) have no right and title in the suit land and the revenue records showing otherwise is null and void and not binding on the plaintiff and are liable to be corrected with consequential relief of permanent prohibitory - 3 - injunction to restrain the defendants from claiming any right or title qua the plaintiff’s share in the suit land. Relief of joint possession was also sought in case the plaintiff was not found in possession or was dispossessed otherwise. Defendants No.2, 3 and 5 did not appear to contest the suit and were proceeded ex-parte vide orders dated 27.9.2006 and 24.11.2006. Defendants No.1 and 4, namely Amar Singh and Surinder Kumar contested the suit by filing written statement. According to defendants No.1 and 4, the relationship between the parties was admitted. However, it was denied that Shankar Singh passed away in the month of November, 1955. According to them mutation of inheritance of the estate of Shankar Singh has been rightly sanctioned in favour of his mother Smt. Brahmi Devi. Defendant No.1 did not manipulate attestation of mutation. It was admitted that Smt. Brahmi Devi passed away on 8.7.2001. She has executed two gift deeds dated 27.5.1996 and 18.6.1997 of her entire property in favour of her grand-son Surinder Kumar (defendant No.4). Thereafter mutation Nos. 154 and 155 were rightly sanctioned on 15.9.1997. It was denied that the revenue entries in favour of Smt. Brahmi Devi were wrong. Brahmi Devi had acquired valid and legal title to the property of Shankar. She has executed the gift deeds in favour of defendant No.4, Surinder Kumar out of love and affection. It was also stated in the written statement that the plaintiff on behalf of his son, namely, Vinod Kumar (defendant No.5) had earlier filed a civil suit - 4 - RBT No.238/98/97, titled Vinod Kumar versus Brahmi Devi on 14.10.1997. The said suit was dismissed by the learned trial Court on 13.11.2002 vide Ex.D-1. Thereafter appeal No.140 of 2002 was preferred against the dismissal of the suit, which was also dismissed by the learned District Jude, Hamipur on 12.10.2004 vide Ex.D-2. Thereafter regular second appeal No.687 of 2005 was also dismissed by this Court vide Ex.D-3 on 3.1.2006. These facts were concealed by the plaintiff. According to the contesting defendants, the plaintiff has not approached the Court with clean hands. Plaintiff filed replication and reiterated the averments contained in plaint. The learned Civil Judge (Junior Division), Barsar, district Hamirpur framed the issues on 23.3.2007. The learned Civil Judge (Junior Division) dismissed the suit on 21.6.2010. Thereafter, the plaintiff preferred an appeal before the learned Additional District Judge (Fast Track Court), Hamirpur. He dismissed the same on 31.3.2011. Hence, this regular second appeal. 3. Notices were issued to the respondents. No appearance has been put in on behalf of defendants No.1 to 4. However, Mr. Gaurav Sharma, Advocate has appeared on behalf of defendant No.5. 4. Mr. Diwan Singh, Advocate appearing vice learned counsel for the appellant, on the basis of substantial questions of law framed has vehemently argued that both the courts below have misconstrued and mis-interpreted the oral as well as - 5 - documentary evidence brought on record. According to him, Shankar Singh died in the month of November, 1955. He then argued that the suit was not barred by constructive res-judicata as held by the courts below. He lastly contended that the statement of maternal uncle of the parties, i.e. PW-2 Shri Balak Ram has not been correctly appreciated by the courts below. 5. I have heard learned counsel for the parties and gone through the pleadings carefully. 6. Since all the substantial questions of law are interconnected and interlinked, they are taken up together for determination to avoid repetition of discussion of evidence. 7. Plaintiff, Kehar Singh has appeared as PW-1. He has led his evidence by way of affidavit. He has admitted that defendant No.5, Vinod Kumar is his son. He has admitted that civil suit titled as Vinod Kumar versus Brahmi Devi was filed. He denied that he had filed the case as next friend of Vinod Kumar as Vinod Kumar was minor. He has feigned ignorance as to the relief claimed in that suit. He has denied that the said suit was filed on 14.10.1997. However, he has admitted that Vinod Kumar had preferred an appeal before the learned District Judge. He has feigned ignorance that an appeal was preferred by Vinod Kumar in this Court and the same was dismissed. He has admitted his signatures as mark ‘A’ on his statement Ex.D-4, recorded in the earlier suit. According to him, Shankar Singh has passed away at - 6 - the age of one year. He has admitted that he has no knowledge about the correct date of birth of his brothers and sisters. He has disowned portion ‘B’ to ‘B’ of his statement Ex.D-4. He has deposed that he came to know of the attestation of mutation of Shankar’s estate in favour of his mother in the year 1970. He also had the knowledge of consolidation operation. He has feigned ignorance that Brahmi Devi had executed gift deeds in favour of Surinder Kumar. He has admitted to have obtained the death certificate of his father from C.M.O. Office mentioning the date of death as 8.7.1954. He volunteered that such date was wrongly recorded. He denied that Shankar Singh passed away at the age of 4-5 years. 8. PW-2, Balak Ram is the maternal uncle of plaintiff and defendant No.1. He testified that Lachhman Dass passed away on 14.11.1953. According to him, Shankar Singh was born in the month of January, 1954. Shankar passed away in the month of November, 1954. Defendant No.1, Amar Singh was looking after the affairs of the family being eldest. He has also deposed that the possession of the parties was joint. However, in cross- examination, he admitted that Surinder was cultivating the land belonging to Brahmi Devi. He has disclosed the date of birth of his own children, but failed to state the dates of birth of the children of Brahmi Devi. According to him, Brahmi Devi passed away in the year 2001, but could not disclose the month and date of her death. - 7 - He denied that Lachhman Dass expired on 8.7.1954 and maintained that he died in the year 1953. 9. PW-3, Ajit Singh has led his evidence by filing affidavit. According to him, the parties were in joint possession over the suit land. He is not a resident of the village of parties, but is resident of village Dakhiora. This village is at a distance of 2 Kms. He has failed to deny that Lachhman expired on 8.7.1954. According to him, he had no knowledge when Lachhman’s children were born and when any of Lachhman’s child expired. 10. Surinder Kumar, defendant No.4 has appeared as DW-1. He has also led his evidence by filing affidavit. As per his cross-examination, his date of birth is 22.2.1975. He has admitted that his grand father, Lachhman expired in the year 1953. He has no knowledge about the dates of birth of his father, uncles and aunts. He has denied that Shankar passed away in the year 1955 at the age of one year. Volunteered that Brahmi Devi had disclosed to him that Shankar had expired at the age of 6-7 years. He has denied that the plaintiff had filed any earlier suit qua the suit land. However, volunteered that the plaintiff had filed the suit on behalf of his minor son. He has stated that they are Rajput by caste and abide by Jamidari custom. Defendants have also examined DW-2, Mukesh Kumar. He deposed that he helped Surinder, i.e. defendant No.4 in cultivation. He used to charge ` 2500/- to 3000/- per crop from defendant Surinder. - 8 - 11. According to the plaintiff, his father Lachhman Dass died on or about 14.11.1953 and after his death, Shankar Singh was born in January, 1954. He has also pleaded that mutation of inheritance of Shri Lachhman Dass was attested on 14.11.1954. Ex.P-3 is the mutation attested on 14.11.1954. According to Ex.P-3, the date of death of Shri Lachhman Dass is mentioned on the mutation proceedings as 9.7.1954. Vide rapat No.4 in the remarks column, it is revealed that the mutation was kept pending as Smt. Brahmi Devi was pregnant. According to rapat No.71 dated 18.10.1954, it is revealed that Smt. Brahmi Devi gave birth to Shankar Singh and thereafter on 14.11.1954 mutation of inheritance of Shri Lachhman Dass was attested in favour of Amar Singh, Kehar Singh and Shankar Singh. According to Ex.P-19, death certificate, the date of death of Shri Lachhman Dass is 8.7.1954. Thus, it is established that Shankar Singh was born between 8.7.1954 and 18.10.1954. The plaintiff has casually stated that he had obtained the death certificate of his father from the C.M.O. office according to which the date of death is 8.7.1954 though he has later on stated that it was incorrect. The matter is required to be considered from another angle also. If Shankar Singh was born in the month of January, 1954, then there was no necessity for keeping the mutation of inheritance of Lachhman Dass in abeyance till 18.10.1954. The Mutation of inheritance of Shankar Singh was attested on 30.3.1970 vide Ex.P-5. Vide Rapat - 9 - Roznamcha No.261 it was informed that Shankar Singh had passed away around 10-11 years ago. This mutation was attested/ sanctioned in presence of Nambardar, Prem Singh. Plaintiff has also admitted that he had himself informed the date of death of his father as 8.7.1954 to the C.M.O. It is also evident that he was also managing the affairs of his family. It has specifically been mentioned in mutation Ex.P-5 that Shankar Singh has passed away at the age of 2½ years. It has come on record that defendant Amar Singh and the plaintiff were residing together till 1978. Mutation of inheritance of the estate of Shankar Singh, as discussed hereinabove, was attested on 30.3.1970. The plaintiff has admitted that he had the knowledge of attestation of such mutation since the year 1970. He had not raised any objection to the date of death of Shankar Singh at the time of mutation proceedings. Thus, the plaintiff has failed to prove that Shankar Singh has died in the month of November, 1955, prior to the commencement of Hindu Succession Act. It was necessary for the plaintiff to place on record the tangible evidence to establish the date of death of Shankar Singh. Thus, mutation No.89 sanctioned in favour of Smt. Brahmi Devi was legal and valid. Smt. Brahmi Devi had acquired valid title to the estate of Shankar Singh on the basis of mutation No.89 and could alienate the same by way of gift deeds dated 27.5.1996 and 18.6.1997 in favour of defendant No.4. - 10 - 12. The plaintiff has earlier filed Civil Suit No.RBT 238/98/97 in his capacity of next friend and as natural guardian of his son, Vinod Kumar, defendant No.5 on 14.10.1997 titled as Vinod Kumar versus Brahmi Devi. The said suit was dismissed by the trial Court vide Ex.D-1. Vinod Kumar also preferred an appeal, which was dismissed vide Ex.D-2. The regular second appeal preferred against the judgment and decree passed by the learned District Judge was also dismissed by this Court on 3.1.2006. The plaintiff has not given the details of the civil suit in his plaint. This fact has come to the notice of the Court only through the written statement filed by the defendants. Defendants No.1 to 3, namely, Amar Singh, Amro Devi and Krishna Devi were party in the earlier suit being legal representatives of Smt. Brahmi Devi. Defendant No.4, Surinder Kumar was also a party to the civil suit as defendant No.2. The plaintiff in his cross-examination has denied that he has filed the earlier suit as per details given hereinabove. He did not know about the relief sought by Vinod Kumar in the earlier suit, but he has admitted that Vinod Kumar has preferred an appeal against the judgment of the trial Court. He has also disowned part of his statement Ex.D-4 recorded in the earlier suit. PW-2, Balak Ram did not know the dates of birth of Surinder Kumar, defendant No.4 and defendant No.5, Vinod Kumar. However, PW-2 has admitted that Shankar Singh was born in the year 1954 and passed away in 1955. In the earlier suit filed by plaintiff being next friend of - 11 - defendant No.5, Vinod Kumar, he never disputed the inheritance of the estate of Shankar Singh in favour of Brahmi Devi. According to para-2 of the judgment Ex.D-1, it was pleaded by Kehar Singh that estate of Shankar Singh devolved upon Smt. Brahmi Devi. In para-27 of the judgment Ex.D-1, the learned trial Court had concluded that Smt. Brahmi Devi inherited the suit land on the death of her son Shankar Singh being the only Class-I heir. The plaintiff, in the capacity of next friend and natural guardian of minor Vinod Kumar in RBT No.238/98/98, the previous suit had the opportunity to challenge the succession of the estate of Shankar Singh in favour of Smt. Brahmi Devi. It is in these circumstances both the courts below have concluded that the present suit is barred by the principles of res-judicata. 13. Accordingly, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in this appeal. Consequently, the same is dismissed being devoid of any merit, so also the pending application(s), if any. No costs. (Justice Rajiv Sharma), Judge. December 16, 2011. (sck).