HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 557 of 2000 Reserved on: 7.10.2010 Decided on: 12.11.2010 Janak Singh and others ……Appellants. Versus Balbir Singh and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Rajnish K.Lal, Advocate, vice Mr.K.D. Sood, Advocate. For respondent No.7: Mr.Neeraj Gupta, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/defendants under Section 100 of the CPC against the judgment and decree, dated 11.8.2000, passed by the learned Additional District Judge(I), Kangra at Dharamshala, H.P., vide which, he dismissed the appeal filed by the appellant/defendants against the judgment and decree of the learned Sub Judge Ist Class, Court No.II, Amb, District Una, dated 27.1.1993, decreeing the suit of the respondent/plaintiffs for declaration and injunction. 2. Briefly stated, the facts of the case are that a suit for declaration and for permanent injunction, and in the alternative for possession was filed by the successor-in-interest of the respondent, namely, Smt.Maina, hereinafter referred to as the plaintiff, as against the ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - appellant and others, hereinafter referred to as the defendants. It was alleged by the plaintiff that the question relates to the estate of Ghaniya Ram, who had wife named Maghi, who succeeded to the estate of Ganga Ram on his death. Smt.Mania claimed succession to her estate being Class II heir. The pedigree table has been shown in the body of the plaint in regard to the relation of the parties. It was alleged that Ganga Ram died in the year 1953 and was succeeded by his widow named Maghi Devi, who was issueless and was not heard for the last 26 years and, therefore, she is legally presumed to be dead. Smt.Maghi Devi owned land as detailed in the plaint. A mutation was attested on the death of deceased Maghi Devi in favour of Raghubir Singh and Munshi Ram, though they had no title or interest to succeed to the estate of Smt.Maghi Devi and, therefore, the mutation was alleged to be void. It was alleged that on the basis of wrong entries in the record of rights, the defendants are interfering in the possession of the plaintiff over the suit land, hence the suit filed by the plaintiff. 3. Defendants contested the suit on various grounds including maintainability, limitation etc. They did not admit the relationship and pedigree table depicted in the plaint. They pleaded that on the death of Maghi Devi, her estate was succeeded by defendants No.1 to 4 and mutation was sanctioned rightly. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: - 3 - 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the suit is not maintainable in the present? OPD 3. Whether the plaintiff is estopped by his act and conduct? OPD 13&14 4. Whether the civil court has no jurisdiction to try this case? OPD 13&14 5. Whether the suit is within time? OPP 6. Relief. 1A. Whether Maghi is not heard since 1959-60 and she is dead? OPP 5. Parties led their evidence and the learned trial Court vide its impugned judgment, decreed the suit of the plaintiff. On appeal, those findings were affirmed by the learned First Appellate Court. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. On appraisal of the record of the case, it is clear that the appeal in question was admitted by this Court on substantial questions of law No.1, 3 and 4 filed alongwith the grounds of appeal. The substantial questions of law mainly were as to whether the findings of the learned court below are vitiated based on inadmissible oral and documentary evidence, particularly, the statements of PW-1 Jagdish who was the Attorney of the plaintiff and the plaintiff had not appeared in the witness box. Whether in view of the documentary evidence which proved that Maghi Devi had died prior to 14.2.1969 and Ganga Ram on 27.9.1934 and since Smt.Maghi was not heard for more than 26 years, - 4 - her succession would be governed by law applicable in 1934 and not by Hindu Succession Act and whether the appellant had become owner of the property by way of adverse possession and the learned Appellate Court had wrongly rejected the application for amendment of the written statement. 8. The pleas raised by the learned counsel for the parties have to be appreciated in the light of the above substantial questions of law and the evidence has to be appreciated accordingly. 9. It was submitted that Smt.Maina Devi is not related to Maghi Devi, though pedigree table shown in the body of plaint has not been disputed. The death certificate of Ganga Ram proves that he died on 27.9.1934 but the court held that he died in the year 1953, though it was alleged in the plaint also that he died in the year 1953. It was also submitted that succession to the estate of Ganga Ram opened in the year 1934 and not in the year 1969 and the evidence led by the defendants does not stand rebutted by the oral and documentary evidence led by the plaintiff and, therefore, the findings to the contrary are liable to be set aside. 10. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein and submitted that since the statement of PW-1 Jagdish showed that the plaintiff was old and unable to depose, therefore, no adverse inference was required to be drawn against the plaintiff. It was also - 5 - submitted that there are concurrent findings of fact on all the issues by the courts below and those findings are not liable to be interfered with in view of the sound reasoning given by the learned Additional District Judge, as shall be discussed below. 11. The learned trial Court had concluded on the basis of the evidence that Ghaniya had two daughters Sita Devi and Gorju and a son Ganga Ram. Ganga Ram had a wife Maghi Devi who is not heard for the last 30 years. Sita Devi died issueless and Gorju gave birth to four daughters, namely, Orku, Chinti, Surju and Maina Devi. Orku and Chinti died issueless, whereas Surju gave birth to Amar Singh. The statement of DW-1 Raghubir Singh showed that Ganga Ram had a wife named Maghi Devi and his estate came to her. He did not deny that Ghaniya had two daughters, namely, Sita Devi and Gorju and a son Ganga Ram. He also could not deny that Orku and Chinti died prior to 1965 and they were issueless. He admitted that the estate of Ganga Ram was mutated in the name of Maghi Devi. He also admitted that Maghi Devi left the village in 1959-60. Thus, it was concluded on the basis of the evidence that Maina Devi is the daughter of Gorju, who was the sister of Ganga Ram and Maghi Devi was widow of Ganga Ram. 12. The question, which arose for consideration, was as to when the succession opened in the case of Maghi Devi, when she was not heard for the last 30 years. The dispute arose for the first time in the year 1969 when mutation Ext.D-11 was entered by the Patwari on 11.2.1969 - 6 - and it was sanctioned on 24.10.1981 and the appeal was taken to the Collector, who affirmed the order vide Ext.D- 10. The plaintiff had alleged that Ganga Ram died in the year 1953 and was succeeded by his widow Maghi Devi, who was issueless, whose property is involved in the present suit. It was alleged that Maghi Devi was not heard for the last 26 years and she is presumed to be dead legally. 13. On the basis of the evidence, the courts below had concluded that Ganga Ram died somewhere in the year 1934 and Maghi Devi inherited his estate. It is the case of the plaintiff and not disputed by the defendants that Smt.Maghi Devi, widow of Ganga Ram, was missing for the last 26 years and presumption would be drawn that she was not heard for the last more than 7 years only when the question arose for consideration before the Court or the revenue authorities as to the inheritance of Smt.Maghi Devi. The question arose, for the first time, in the year 1969 and it has been rightly held by the learned First Appellate Court that by that time the Hindu Succession Act, 1956 had already come in force and, therefore, she became full owner of her estate, which she inherited from her husband Ganga Ram. It has also come up on the record that Maghi Devi died intestate and issueless. Therefore, after her death, the heirs of her husband would be entitled to succeed to her estate. There is no question of succession in regard to Maghi Devi opening the moment she was missing after the death of her husband in the year 1934, but this question will be decided only when the question of - 7 - inheritance of Smt.Maghi Devi opened and, therefore, it has to be concluded that she was not heard for the last more than 7 years. No infirmity could be pointed out in the findings recorded by both the courts below that she had become full owner under the Hindu Succession Act, until and unless it was proved on record that she died prior to coming into force the said Act, which is not the case here. She was missing, allegedly, for the last 26 years when the suit was filed and, therefore, by the time the succession opened, she had already become full owner under the provisions of the Hindu Succession Act. It was proved on the basis of the evidence, therefore, that the plaintiff is Maghi’s husband’s sister’s daughter and therefore, she falls in Class II heir in category IV(4) being husband’s sister’s daughter. Therefore, she will be deemed to have inherited the estate of Maghi and as such no fault could be found with the findings recorded by the courts below and the evidence led in this regard cannot be re-appreciated by this Court sitting in second appeal. I have only referred to the material findings recorded by both the courts below, but no infirmity could be pointed out in those findings to hold that there has to be reappraisal of evidence by this Court sitting in second appeal. 14. The decision in case Dumnu Ram versus Madan Lal & Ors., Latest HLJ 2002(HP) 461 relied upon does not apply to the present facts inasmuch as this Court concluded that presumption of truth is attached to the record of rights under Section 45 of the H.P. Land Revenue Act, which - 8 - presumption is rebuttable. However, convincing and reliable evidence is required to dislodge the presumption. 15. Reliance was also placed upon the decision in Corporation of City of Bangalore versus Zulekha Bi and others, (2008) 11 Supreme Court Cases 306, in which case the dispute was in regard to title of the suit property. Respondent No.1 was plaintiff before the trial Court claiming title to the suit property. With regard to burden of proof, it was held that the burden of proof lay on her to prove her title in which she failed to do so. 16. In the present case, the burden of proof that the plaintiff had succeeded to the estate of Maghi Devi was upon the plaintiff which has been duly rebutted by the evidence, oral as well as documentary, led by the plaintiff. 17. Coming to the question that the plaintiff’s Attorney had only appeared in the witness box, nothing was pointed out that the Attorney of the plaintiff PW-1 Jagdish, her son, was not able to depose about some of the facts, which were within the knowledge of the plaintiff only. He stated that Maina Devi was old, is hard of hearing and he is conversant with the facts and, therefore, he had deposed. The question was in regard to relationship in between the parties, which had not been specifically disputed by he defendants in their evidence. The defendants were not able to rebut the evidence that the plaintiff was Maghi’s husband’s sister’s daughter and accordingly was entitled to the relief claimed by her. These findings of - 9 - fact recorded by both the courts below call for no reappraisal of evidence on any of the grounds as raised in the substantial questions of law formulated alongwith the grounds of appeal and, therefore, I find no reasons to re- appreciate the evidence or come to a different conclusion since both the courts below had given their findings in favour of the plaintiff based upon oral and documentary evidence. No oral or documentary evidence was referred to show that the learned courts below had drawn wrong conclusions based upon the evidence and, therefore, I am of the opinion that there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is dismissed accordingly. However, the parties are left to bear their own costs. Nov.12, 2010. (V.K. Ahuja), (tilak) Judge.