RSA No.827 of 2003(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.827 of 2003(O&M) Date of decision:8.5.2009 Major Singh and another ......Appellants Versus Mukhtiar Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.L. Batta, Sr. Advocate with Ms. Geeta Sharma, Advocate for the appellants. Mr. Ashok Jindal, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is plaintiffs' regular second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the defendant-respondent against the judgment and decree of the trial Court has been accepted and the suit filed by the appellants which was decreed by the trial Court, has been ordered to be dismissed. Brief facts of the case necessary for the decision of this appeal as per the pleadings of the parties are that the appellants filed a suit for declaration to the effect that they are owners in possession of the suit land as detailed in the head note of the suit being the legal heirs of Buta Singh son of Waryam Singh and mutation No.12245 is illegal, null and void. The plaintiffs also sought a consequential relief of permanent injunction restraining the defendants from alienating the suit land in any manner and from forcibly dispossessing the plaintiffs from the above mentioned suit land. It was further alleged that previously one Chetu was the owner of the whole land measuring 231 kanals 19 marlas and was succeeded by his two sons Bhagwana and Waryam Singh. The plaintiff-appellants who are the RSA No.827 of 2003(O&M) 2 children of Bhagwana became owners of half share of the aforesaid land which had fallen to the share of their father Bhagwana. The other half share which had come to the share of Waryam Singh was inherited by his son Buta Singh. It is further alleged that Buta Singh son of Waryam Singh left India in the year 1938 and settled somewhere in a foreign country. The plaintiffs and other inhabitants did not hear about Buta Singh since 1938 till date. So, it is presumed that Buta Singh had died. It is the further case of the appellants that Buta Singh remained unmarried and issueless during his life-time. The defendant is alleging himself to be the son of said Buta Singh. Mutation No.12245 sanctioned in favour of the defendant and Bhagwan Kaur alleged widow and Charan Kaur alleged daughter of Buta Singh is forged which was sanctioned at the back of the plaintiff. Bhagwan Kaur and Charan Kaur were not widow and daughter of Buta Singh respectively. The said Mukhtiar Singh, Charan Kaur and Bhagwan Kaur had never visited India. Mukhtiar Singh for the first time was seen in the village about 15 days ago. They had not visited in the year 1966 when the mutation was sanctioned in their favour. The plaintiffs are in possession of the suit land since the year 1938. Now the defendant has alleged that Bhagwan Kaur and Charan Kaur had also died and mutation No.17747 was entered in his favour. The defendant had concocted a story. The defendant never came to India and the plaintiffs never paid any share of produce to anybody else. The plaintiffs were the real son and daughter of Bhagwana. Bhagwana was real brother of Waryam Singh, father of said Buta Singh. So the plaintiffs being reversioners of Buta Singh are entitled to the property in dispute. The defendant who has no right or interest in the suit land wants to grab the same and take undue advantage of the illegal mutations, and further wants to alienate the suit land and for this purpose he wants to take forcible possession of the suit land for which he RSA No.827 of 2003(O&M) 3 has no right to do so. Two days back, he had tried to take forcible possession of the suit land but the situation was saved due to timely intervention of some respectables of the village. The defendant was asked to admit the claim of the plaintiffs but he refused to do so. Hence, this suit. On the other hand, the defendants filed written statement taking various preliminary objections regarding maintainability of the suit, locus standi, estoppel and limitation. It was also alleged that mutation of inheritance of Buta Singh was sanctioned in favour of the defendant and his mother Bhagwan Kaur and sister Gurcharan Kaur in equal shares in the year 1964 being the legal heirs of the deceased Buta Singh. The said Bhagwan Kaur had also died in the year 1976 and mutation of inheritance was also sanctioned in favour of the defendant and his sister. The said Gurcharan Kaur also died and mutation of her share was also sanctioned in favour of the defendant and thus, the defendant has become the full owner of the share of property of Buta Singh. On merits, it was alleged that Buta Singh was married with Bhagwan Kaur. The defendant along with Gurcharan Kaur were born out of this wedlock. The name of the defendant was recorded in the revenue record and presumption of true is attached thereto. Buta Singh was married with Bhagwan Kaur at village Kokari Hare Tehsil Moga. He was residing in Malaysia. The defendant was also residing in Malaysia. In the year 1956, the defendant shifted to Singapore. Singapore at that time was a part of Malaysia. In the year 1965, Singapore got its independence. Malaysia was under the control of United Kingdom. The educational certificate of defendant Mukhtiar Singh shows that he is the son of said Buta Singh. The citizenship certificate of Buta Singh shows that the defendant is the son of Buta Singh. The mutation had been rightly sanctioned in favour of the defendant, Mukhtiar Singh, Bhagwan Kaur and RSA No.827 of 2003(O&M) 4 Gurcharan Kaur. It was further alleged that the plaintiffs negotiated with the defendant to purchase the suit land. However, the same could not materialize. Rest of the allegations were denied as wrong. Consequently, it was prayed that the suit be dismissed with costs. In replication, the plaintiff reiterated his averments as contained in the plaint and denied those in the written statement of the defendant. Out of the pleadings of the parties, the following issues were framed: “1. Whether the plaintiffs are entitled to inherit ½ share of suit land belonging to deceased Buta Singh and as such after the death of Buta Singh the plaintiffs have become the owners of whole of the suit land measuring 231 kanals 19 marlas fully described in the head note of the plaint? OPP 2. Whether the plaintiffs are entitled to declaration and permanent injunction as prayed for? OPP 3. Whether the suit is within time? OPP 4. Whether the plaintiffs have got no locus standi to file the present suit?OPD 5. Whether the suit in the present form is not maintainable? OPD 6. Whether the plaintiffs are estopped to file the present suit by their own act and conduct?OPD 7. Whether the suit is false and frivolous to the very knowledge of the plaintiffs and as such the defendant is entitled for special costs under section 35-A CPC? OPD 8. Relief.” Parties led their respective evidence and after hearing the RSA No.827 of 2003(O&M) 5 arguments of the learned counsel for the parties, the trial Court vide impugned judgment and decree dated 28.8.2001 decreed the suit of the plaintiffs for declaration and permanent injunction as prayed for. Aggrieved against the judgment and decree of the trial Court, the defendant filed an appeal which was accepted by the Lower Appellate Court vide impugned judgment and decree dated 25.10.2002 and the judgment and decree of the trial Court was set aside holding that the plaintiffs were not entitled to the decree of declaration and permanent injunction as prayed for in the suit. Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Lower Appellate Court. This Court vide its order dated 29.11.2004 framed the following law points for adjudication of this Court: “1. Whether the learned trial Court was justified in arriving at finding on the basis of record and evidence that Buta Singh died unmarried and issueless and consequently decreed the suit filed by the appellant- plaintiffs? 2. Whether the finding arrived at by the learned appellate authority is warranted by evidence on record? 3. Whether the requirement of Sections 50 and 60 of the Indian Evidence Act, 1872 are mandatory to establish the relationship of Buta Singh with alleged wife Bhagwan Kaur, son Mukhtiar Singh and daughter Gurcharan Kaur respectively? 4. Whether the DW-3, DW-4, DW-5 have special means of knowledge to establish the relationship of Buta Singh with Bhagwan Kaur, Mukhtiar Singh and RSA No.827 of 2003(O&M) 6 Gurcharan Kaur as required under Sections 50 and 60 of the Indian Evidence Act? 5. Whether the non-production of Mukhtiar Singh defendant gives adverse inference against him under Section 114 of the Indian Evidence Act? 6. What is the effect of non-production of best piece of evidence, i.e., Mukhtiar Singh himself did not appear in witness box to support his case? 7. Whether the certificates, A-1, A-2 and A-3 which have been produced concerning the death of Buta Singh, Bhagwan Kaur and Gurcharan Kaur respectively are proved in accordance with the provisions of Section 78 sub section 6 of the Indian Evidence Act as regards to the foreign documents? 8. Whether the mutation creates title? 9. Whether the period of limitation is required when the question of inheritance is involved?” In support of his case, learned senior Advocate appearing on behalf of the appellants has vehemently argued that the requirement of Sections 50 and 60 of the Indian Evidence Act, 1872 is mandatory to establish the relationship of Buta Singh with alleged wife Bhagwan Kaur, son Mukhtiar Singh and daugher Gurcharan Kaur and the testimony of DW-3, DW-4 and DW-5 to establish the relationship of Buta Singh with the aforesaid persons cannot be relied upon as the same does not fulfill the requirement of Section 50 of the Indian Evidence Act, 1872 as the aforesaid witnesses had no special means of knowledge to establish the relationship of Buta Singh with the defendant and others. Moreover, the defendants have failed to produce the best evidence to establish the RSA No.827 of 2003(O&M) 7 relationship of the defendant with Buta Singh and Bhagwan Kaur as it has been established on record that the relatives of Bhagwan Kaur are still residing in village Kokri Hare Tehsil Moga who were the best witnesses having special means of knowledge to establish the relationship of Buta Singh with Bhagwan Kaur and the defendant and his sister Gurcharan Kaur. However, the same has not been produced for the reasons best known to the defendant-respondent and therefore, an adverse inference has to be drawn against the defendant. Learned counsel for the appellants has further argued that in this case, the defendant has failed to step into the witness box which is fatal to his case as DW-5 Jaswant Singh being a special power of attorney was not competent to depose on behalf of the defendant in his capacity as he had no special means of knowledge about the relationship of the defendant with Buta Singh. Learned counsel for the appellants has further argued that the Lower Appellate Court has erred at law while relying upon the documents which have not been produced in accordance with the provisions of Section 78 sub Section (6) of the Indian Evidence Act and the findings of the Lower Appellate Court that the aforesaid documents stand proved under Section 82 of the Indian Evidence Act are erroneous. Learned counsel for the appellants also argued that the documents relied upon by the Lower Appellate Court were not exhibited and were marked document only and therefore, could not be read into evidence. Further, the learned counsel for the appellants argued that it is well established principle of law that mutation does not confer any title and therefore, the sanction of mutation in favour of the defendant has no value and was liable to be ignored and since the suit was based upon inheritance, there was no bar of limitation upon the appellants for filing the present suit. On the basis of aforesaid arguments, learned senior counsel for the appellants has argued that the following substantial questions of law RSA No.827 of 2003(O&M) 8 arise in this appeal: 1. Whether the requirement of Sections 50 and 60 of the Indian Evidence Act, 1872 are mandatory to establish the relationship of Buta Singh with alleged wife Bhagwan Kaur, son Mukhtiar Singh and daughter Gurcharan Kaur respectively? 2. Whether the non-production of Mukhtiar Singh defendant gives adverse inference against him under Section 114 of the Indian Evidence Act? 3. Whether the certificates, A-1, A-2 and A-3 which have been produced concerning the death of Buta Singh, Bhagwan Kaur and Gurcharan Kaur respectively are proved in accordance with the provisions of Section 78 sub section 6 of the Indian Evidence Act as regards to the foreign documents?” In support of his case, the learned counsel for the appellants has relied upon judgments reported as Ram Prasad v. Hari Narain and others AIR 1998 Rajasthan 185(1), Sankhali Dhal (and after him), Gadadhar Dhal and others v. Nilamani Dei and others AIR 1994 Orissa 298, Vidhyadhar v. Mankikrao and another, AIR 1999 SC 1441, Mohinder Singh (deceased by LRs) and another v. Kashmira Singh AIR 1985 Punjab and Haryana 215, Sait Tarajee Khimchand and others v. Yelamarti Satyam and others AIR 1971 SC 1865, Gurmail Singh v. Balbir Singh 1998(2) RCR (Civil) 381, Bant Singh and another v. Niranjan Singh (D) by LRs and another AIR 2008 SC 1512, Dolgobinda Paricha v. Nimai Charan Misra and others AIR 1959 SC 914 and has prayed that the present appeal be accepted and judgment and decree of the Lower Appellate Court be set aside. RSA No.827 of 2003(O&M) 9 On the other hand, Mr. Ashok Jindal, learned counsel appearing on behalf of the defendant-respondent has supported the findings of the Lower Appellate Court and has argued that on appreciation of evidence on record, the Lower Appellate Court has recorded a finding of fact that the defendant was the son of Buta Singh and in view of this finding alone, the present appeal has no merit and is liable to be dismissed. It has been further argued on behalf of the defendant-respondent that the appellants have failed to prove their case by leading cogent evidence on record under issue No.1 with regard to the fact that Buta Singh died issueless and widowless and it was for the appellants to rebut the presumption of truth as attached to the entries in the revenue record wherein the defendant has been described as son of Buta Singh and moreover, the plaintiffs are estopped by their own conduct from raising the issue of relationship of the defendant with Buta Singh as undisputedly vide Ex.D-16, mutation of inheritance of Buta Singh was sanctioned in favour of the defendant in the presence of Major Singh-appellant. Learned counsel for the respondent has further argued that the Lower Appellate Court has rightly relied upon the documents mark D-23, D-25, D-26, D-29, D-32 and D-28 as all these documents were issued by the Competent Authority under the British Crown and by virtue of Section 82 of the Indian Evidence, these documents were per se admissible and a judicial notice of these documents was rightly taken by the Lower Appellate Court. It was further argued by him that the authenticity of these documents cannot be doubted as the same were issued by a Competent Authority of a foreign country. Learned counsel for the respondent has also argued that apart from the aforesaid documents, there is ample documentary evidence i.e. revenue records in the shape of Pedigree Table Ex.D-7, Ex.D-8 and Ex.D-9 Jamabandies for the years 1976-77 and 1981-82 and Ex.D-27/A RSA No.827 of 2003(O&M) 10 Translated copy of mutation No.13329 and Ex.P-10, the orders passed by the Financial Commissioner (Revenue), State of Punjab, from which relationship of the defendant is established with Buta Singh and there is no cogent evidence led by the appellants to rebut the aforesaid evidence and therefore, no substantial question of law as argued by the learned counsel for the appellants arises in this appeal and the same is liable to be dismissed. I have heard learned counsel for the parties and have perused the record in the case. From the record as well as pleadings and evidence , it can be gathered that the plaintiff-appellants have set up their claim by claiming themselves as reversioners of Buta Singh alleging that Buta Singh had died issueless and unmarried whereas the defendant-respondent has set up his claim in respect of the estate of Buta Singh on the basis of natural succession and inheritance being his son. In support of their case, the plaintiff examined PW-1 Major Singh, PW-2 Mukand Singh, P-3 Faqir Singh, PW-4 Gurdev Singh, and relied upon copies of jamabandies for the year 1992-93 and 1993-94 Ex.P-3 and P-4 respectively. Copies of khasra Girdawaries Ex.P-5, Ex.P-6 and Ex.P-7. Copy of Ex.8, Certificate issued by the Additional District Registrar, Ferozepur regarding non-availability of entry of Mukhtiar Singh. Copy of Ex.P-9, Certificate issued by Additional District Registrar, Moga, regarding non-registration of Birth entry of Mukhtiar Singh in the Birth Register and Ex.P-10, certified copy of the order passed by the Additional Commissioner (Appeals) Ferozepur. PW-1 Major Singh had reiterated the averments as made in the plaint. PW-2 Mukand Singh deposed that in 1939, he went to Malaysia from his native village Bhinder Khurd and joined Police Department on 1.2.1940. He further deposed that he returned to India in the year 1981-82 and Buta Singh r/o RSA No.827 of 2003(O&M) 11 of village Bhinder Khurd, had gone to Malaysia two years earlier to him and Buta Singh met him many times in Malaysia and he was unmarried and issueless and he died there in 1963. PW-3 Faqir Singh, Nambardar of village Bhinder Kalan has deposed that he did not know Mukhtiar Singh and Buta Singh and he never verified inheritance of Buta Singh son of Waryam Singh and he had a doubt that Patwari had obtained his thumb impression on mutation of inheritance of Buta Singh under the garb of four other mutations which were sanctioned on that day. PW-4 Gurdev Singh had deposed that he remained working as Sarbah Nambardar of village Bhinder Kalan for the years 1976 to 1992 and that Buta Singh son of Waryam Singh was known to him from his childhood and that Buta Singh was unmarried and issueless. Buta Singh went to Malaysia in 1938 and never returned to India. Mukhtiar Singh had no concern with Buta Singh and he had returned to India two years ago and before that he had not visited India and that the plaintiffs were in possession of the suit land. Thus, from the oral testimonies as produced by the appellants, it may be noticed that it was only PW2 Mukand Singh, who could have possibly some knowledge about the fact that Buta Singh died unmarried and issueless in Malaysia. No doubt in his statement, he has stated that Buta Singh met him many times in Malaysia and he was unmarried and issueless, however, he has failed to disclose that how he came to know that Buta Singh was not married or was issueless or what was the source of his information as he has not stated that he had visited the house of Buta Singh in Malaysia. Similarly, the documentary evidence relied upon by the appellants is of no help to establish the fact that Buta Singh died issueless and unmarried as the revenue record Exs.P-3 to P-7 only establishes the possession of the appellants in the suit land and the even documents Ex.P-8 and P-9 in no way prove that Mukhtiar Singh- defendant was not RSA No.827 of 2003(O&M) 12 the son of Buta Singh. Simply because there is no birth entry available in the record in the birth register at Moga will not prove the case of the appellants even this is not the case of the respondent that he has taken birth in India. Ex.P-10 is the order passed by the Additional Commissioner (Appeals) Ferozepur Division, Ferozepur filed by the appellants against the defendant challenging the mutation No.12245 dated 8.10.1964 sanctioning the mutation of inheritance of deceased Buta Singh in favour of defendant- Mukhtiar Singh, his sister Gurcharan Kaur and mother Bhagwan Kaur. In this revision petition specifically a ground was taken that the respondent does not relate to Buta Singh at all and the appellants are the only legal heirs of said Buta Singh. The revision petition filed by the appellants was dismissed by the Additional Commissioner (Appeals) Ferozepur Division, Ferozepur holding that mutation of inheritance of deceased Buta Singh, Bhagwan Kaur and Gurcharan Kaur was rightly sanctioned in the name of the respondent by the A.C, IInd Grade after the Shajra Nasab was verified by the Nambardar and the mutation dated 8.10.1964 regarding inheritance of Buta Singh deceased in favour of Bhagwan Kaur, widow, Mukhtiar Singh, son and Gurcharan Kaur, daughter and there was nothing on record to suggest that Buta Singh died issueless and Mukhtiar Singh son was not his son and the mutations were correctly decided and there was no illegality or infirmity in the impugned orders of the Lower Revenue Authorities. On the other hand, leaving apart the other documentary evidence, evidentiary value of which has been challenged there is evidence on record in the shape of revenue record (Ex.D-7 Pedigree table and Ex.D-16 Mutation No.12245 and Ex.D-27(A) mutation No.13329) proving relationship of defendant with deceased Buta Singh. It is relevant to mention that mutation of inheritance of Buta Singh was sanctioned in RSA No.827 of 2003(O&M) 13 favour of defendant being his son and Gurcharan Kaur and Bhagwan Kaur being daughter and widow of Buta Singh respectively in the presence of Major Singh plaintiff-appellant, in the general meeting of the villagers held by A.C IInd Grade for sanctioning the mutation by the appellants is estopped from challenging the relationship of the defendant-respondent with Buta Singh deceased after 32 years of the sanctioning of mutation Ex.D-16 and in view of the fact that the said mutation was contested by the appellants before the Revenue Authorities upto the level of Commissioner and the appellants lost vide Ex.P-10. It is also relevant to refer to the following observations of the Additional Commissioner (Appeals) Ferozepur Division, Ferozepur: “After carefully going through the record of the cases & hearing the arguments advanced by the learned counsel for the petitioners, I have come to the conclusion that mutations of inheritance of deceased Buta Singh, Smt. Bhagwan Kaur and Gurcharan Kaur have been sanctioned in the name of the respondent by A.C. IInd Grade, after the Shajra Nasab had been verified by the Nambardar. Earlier also in the year 1964, mutation of inheritance of Sh. Buta Singh deceased had been sanctioned in the name of Smt. Bhagwan Kaur widow, Sh. Mukhtiar Singh son and Smt. Gurcharan Kaur daughter of Sh. Buta Singh deceased. Allegedly that mutation had now been challenged in the civil Court. Civil Court has not made by direction so far as the inheritance of Sh. Buta Singh deceased is concerned. The judgments of Civil Courts are binding on the Revenue Officers so that judgment whatever it is RSA No.827 of 2003(O&M) 14 delivered will be implemented. Claiming ownership by way of adverse possession also falls in the purview of the civil court. The petitioners can file suit in the civil court in this record. Collector has given proper opportunity of being heard to the parties and there is no reason for declaring the mutations as contested, if the facts are prima facie clear. There is nothing on the record to suggest that Buta Singh had died issueless and Mukhtiar Singh was not his son.