Regular Second Appeal No.3282 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3282 of 2009 (O&M) Date of Decision:-28.7.2011 Jagbir and others ...Appellants Versus Smt.Rajli and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.O.P.Goyal, Senior Advocate with Ms.Shilpa Sahi, Advocate for the appellants. Mr.Rameshwar Malik, Advocate for respondent No.1. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and discussed the pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in the present regular second appeal in this context. However, the conspectus of the facts, culminating in the commencement, relevant for deciding the present appeal and emanating from the record, is that Smt.Rajli widow of Rama Nand son of Nathu respondent No.1- plaintiff (for brevity “the plaintiff”) filed the suit against Bakhtawar son of Gabdu son of Nathu and others proforma respondents-defendants (for short 'the defendants”) seeking a decree for declaration to the effect that she is owner and in possession of 1/3rd share of land in question, situated in the area of village Makdani, Tehsil Dadri, Distt.Bhiwani and mutation, bearing No.110 dated 4.4.1960 (Ex.D1 & Ex.D1/A) and the fact of showing her as the wife of Gabdu, by means of Karewa marriage, are illegal, null, void, not binding on her rights and upto date contrary revenue entries are liable to be corrected in her favour. Alternative, she has also prayed for a decree of possession in this respect. 2. The case set up by the plaintiff, in brief in so far as relevant, was that Regular Second Appeal No.3282 of 2009 (O&M) -2- her marriage was solemnized with Rama Nand son of Nathu. After his death, she is residing with the family as his (Rama Nand's) widow and inherited 1/3rd share out of the land in dispute in this regard. The plaintiff claimed that she neither contracted any Karewa marriage nor re-married nor resided with Gabdu as his wife. However, the defendants, in collusion with the revenue officials, got sanctioned the mutation on 4.4.1960 (Ex.D1 & Ex.D1/A) in their favour, wrongly showing her as wife, by way of Karewa marriage with Gabdu. On the basis of wrong mutation, the defendants have started asserting their ownership over the suit land. The mutation was stated to be illegal, null, void, not binding on the rights of the plaintiff and is liable to be set aside. 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to plaintiff that she is owner and in possession of 1/3rd share out of the total land in question, being widow of Rama Nand and she never performed any Karewa marriage with Gabdu, but the defendants have illegally got sanctioned the mutation (Ex.D1 & Ex.D1/A), showing her Karewa marriage with Gabdu, without any legal basis. The plaintiff asked them to admit her claim to the extent of 1/3rd share in the entire land in question, being widow of Rama Nand, but in vain, which necessitated her to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit for declaration/possession against the defendants in the manner indicated hereinabove. 4. The contesting defendants refuted the claim of the plaintiff. Defendant Nos.4, 5, 9 and 12 filed their written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, limitation, cause of action and locus standi of the plaintiff. According to contesting defendants that although the marriage of plaintiff was initially performed with Rama Nand, but after 13th day (Teharvi) of his death, she contracted Karewa marriage with Gabdu. Thus, she was stated to have forfeited her right in the property after contracting Karewa marriage with Gabdu. The mutation (Ex.D1 & Ex.D1/A) was stated to Regular Second Appeal No.3282 of 2009 (O&M) -3- have been rightly sanctioned by the revenue officials. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the plaintiff is owner in possession of the suit land?OPP 2. Whether the plaintiff never contracted Karewa marriage with Gabdu and, therefore, mutation No.110 is null, illegal, void and not binding on the plaintiff?OPP 3. Whether the plaintiff is entitled to the declaration prayed for?OPP (onus corrected vide order dated 11.12.2001) 4. Whether the plaintiff was married to Rama Nand and after the death of Ramanand, she had contracted Karewa marriage with his brother Gabdu, if so to what effect?OPD 5. Whether the defendants are owners in possession of the suit land?OPD 6. Whether the suit is barred by time?OPD 7. Whether the suit is not maintainable?OPD 8. Relief. 6. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court, after taking into consideration the entire oral as well as documentary evidence on record, recorded a finding of fact that it is not proved on record that plaintiff performed the Karewa marriage with Gabdu or she had forfeited her right and since the mutation (Ex.D1 & Ex.D1/A) is illegal, null, void, non est and she is co-sharer in the property in dispute, so, the suit filed by her is within limitation and decreed the suit of the plaintiff, by means of impugned judgment and decree dated 11.12.2001, the operative part of which is (para 15) as under:- “As a sequel to my discussion on various issues above, suit succeeds and is hereby decreed in favour of the plaintiff and against the defendants. Regular Second Appeal No.3282 of 2009 (O&M) -4- The plaintiff is declared to be owner in possession of 20 bighe 12 biswe i.e. 1/3rd share out of 61 bighe 13 biswe of land situated in village Makrani comprised in khewat No.7/7 as per the jamabandi for the year 1956-57 mahalcha of khewat No.2/5 and whose latest khewat number is 20/19 Khatauni No.23 as per the jamabandi for the year 1986-87/1987-88. It is further declared that mutation No.110 dated 4.4.60 showing plaintiff to have contracted karewa marriage with Gabdu is illegal, null and void and not binding upon the rights of the plaintiff and is set aside. As a consequential relief, the plaintiff is entitled to get the revenue record corrected. In the peculiar circumstances of the case no order as to costs. Decree-sheet be prepared and file be consigned to the record-room.” 8. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 30.7.2009. 9. Appellant-defendants Jagbir, Ved Parkash son of Manohar and Kapoor son of Rohtash still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal. 10. At the very outset, assailing the impugned judgments and decrees, the learned counsel for the appellant-defendants contended with some amount of vehemence that since Rajli plaintiff had forfeited her right in the property in dispute and mutation (Ex.D1 & Ex.D1/A) was sanctioned on 4.4.1960 in favour of the defendants on account of her Karewa marriage with Gabdu, so, the Courts below fell in error in decreeing her suit, which was even beyond limitation. He prayed for acceptance of the appeal. 11. On the contrary, hailing the impugned judgments and decrees, the learned counsel for the respondent-plaintiff urged that the defendants have neither proved by any cogent evidence that plaintiff Rajli performed a Karewa marriage with Gabdu, nor she had forfeited her right in the property in dispute, therefore, the Courts below have rightly decreed her suit. He submitted that the instant appeal be dismissed. 12. Having heard the learned counsel for the parties, having gone Regular Second Appeal No.3282 of 2009 (O&M) -5- through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal in this context. 13. As is evident from the record that marriage of plaintiff Rajli was solemnized with Rama Nand son of Nathu. After his death, she naturally inherited the property of her husband. The defendants claimed that since the plaintiff performed a Karewa marriage with Gabdu after the death of her husband, so, she had forfeited her rights in his (Rama Nand) property. On the contrary, according to plaintiff, she never performed any Karewa marriage. She resided with her family as a widow of Rama Nand and the defendants illegally got sanctioned the mutation (Ex.D1 & Ex.D1/A) in the garb of her alleged Karewa marriage with Gabdu, which was claimed to be illegal, null and void. 14. Such thus being the position on record, now the short and significant question, though important that arises for determination in the present appeal is, as to whether the defendants have proved the Karewa marriage of plaintiff with Gabdu or that she had ever forfeited her rights in the property in dispute or not ? 15. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the defendants have miserably failed to prove the karewa marriage of plaintiff with Gabdu and forfeiture of her rights in the property in this relevant connection. 16. What is not disputed here is that the contesting defendants have vaguely pleaded in their written statement that Rajli performed a Karewa marriage with Gabdu after 13th day (Teharvi) of death of her husband Rama Nand and defendant Partap was born out of their wedlock. The assertion is totally contradicted by Sudhan (DW4), where he has admitted that Partap and Hukam Kaur were born out of the wedlock of Ghoghari Ist wife of Gabdu and not from the plaintiff. Sequelly, Ranjit Singh (DW5) has stated that Karewa marriage by plaintiff with Gabdu was performed after 1½/2 years of the death of Rama Nand, while as per the pleadings, she performed the Karewa marriage after 13th day Regular Second Appeal No.3282 of 2009 (O&M) -6- (Teharvi) of the death of her husband Rama Nand. Moreover, he has also admitted that at the time of Karewa marriage, Ghoghari earlier wife of Gabdu was alive. It is also very strange and difficult to believe that the plaintiff would perform second Karewa marriage with Gabdu, when his first wife was still alive. 17. Likewise, in the alleged mutation (Ex.D1 & Ex.D!/A), it was mentioned that Rajli performed Karewa marriage with Gabdu 15/16 years ago. This mutation was stated to have been sanctioned on 4.4.1960. That means, Rajli plaintiff would have performed the Karewa marriage some where in the year 1944- 45. But strange enough that if Rajli performed the Karewa marriage with Gabdu in the year 1944-45 or forfeited her right in the property as alleged, why it was not so recorded in the immediate subsequent mutation/revenue record. It cannot possibly be denied that in the subsequent jamabandi for the year 1956-57 (Ex.P2), Rajli plaintiff, as the widow of Rama Nand, has been shown to be co-owner and in possession of the land to the extent of 1/3rd share, which demolishes the case of the defendants that she performed the Karewa marriage in the year 1944-45 as described in the mutation (Ex.D1 & Ex.D1/A). How, when, in what manner and what prompted or what was the special occasion to enter/sanction the mutation (Ex.D1/A) on 4.4.1960, remains an unfolded mystery during the course of trial. 18. Not only that, the vague entries of mutation (Ex.D1 & Ex.D1/A) were blown out of proportion by the defendants and their entire case is based on this mutation. The perusal of the record would reveal that the revenue officials neither recorded the statement of plaintiff nor it was thumb marked/signed by her. The mere writing by the Assistant Collector 2nd Grade that plaintiff admitted her Karewa marriage with Gabdu, is meaning less and is not sufficient, in the absence of any cogent evidence on record to prove that she was actually present or her statement was recorded or she thumb marked/signed the proceedings of the mutation, which is totally lacking in the instant case. In the absence of the same, to my mind, no implicit reliance can be placed on it, in order to deprive the plaintiff Regular Second Appeal No.3282 of 2009 (O&M) -7- from her legitimate right in the property in dispute. 19. There is another aspect of the matter, which can be viewed from a different angle. As indicated earlier, the trial Court has recorded a finding of fact based on the evidence that the defendants have utterly failed to prove the Karewa marriage of the plaintiff with Gabdu. These findings were upheld by the first appellate Court. It is not a matter of dispute that plaintiff was shown as co-owner and in possession of the share of land inherited by her from her husband Rama Nand, till the alleged mutation was entered/sanctioned on 4.4.1960. That means, she became absolute owner and in possession by operation of law after the commencement of Hindu Succession Act, 1956. Once, the plaintiff became the absolute owner, then it remains an unfolded mystery, as to how such absolute right can be defeated by stray meaning less entries of mutation, which was even not signed by her. The learned counsel for contesting defendants did not point out as to how, in what manner and under which provision of law, the plaintiff had forfeited her right in the property inherited by her from her husband Rama Nand. Therefore, if the Karewa marriage of plaintiff with Gabdu is not proved, then, mere stray meaning less entries in mutation (Ex.D1 & Ex.D1/A) in the year 1960 are not only illegal, null and void but are not bindings on her rights as well. The mere production of photostat copy of Form D-1 of ration card would not come to the rescue of the contesting defendants in this respect, particularly when in the voter list (Ex.P14) and photo copy of voter identity card (Ex.P15) issued on 1.1.1996, subsequently, the plaintiff has been described as wife of Rama Nand. In this manner, the contesting defendants have miserably failed to substantiate their pleaded case. 20. Faced with the situation, the next submission of learned counsel for the appellant-defendants that the suit filed by the plaintiff was time barred, is again neither tenable nor the observations of Hon'ble Apex Court in case Shyam Lal @ Kuldeep v. Sanjeev Kumar & Others JT 2009(8) SC 108 are at all applicable to Regular Second Appeal No.3282 of 2009 (O&M) -8- the facts of this case, wherein, the will dated 4.12.1978 and mutation sanctioned in pursuance thereof was challenged. On the peculiar facts and in the special circumstances of that case, it was observed that “the period of limitation prescribed under the law for such a suit is three years from the date of cause of action accrued to the plaintiff.” Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the contesting defendants in the instant case. 21. As discussed hereinabove, once it is proved on record that the alleged mutations (Ex.D1 & Ex.D1/A) is illegal, non est, null, void, in operative on the rights of the plaintiff and she has been recorded as co-sharer in the property in dispute in the jamabandi (Ex.P2), then she would be deemed to be co- owner/possession of every inch of the joint property and possession of one co- sharer, will be on behalf of all the co-sharers. Consequently, she has every right to claim declaration in this regard in case of denial of her ownership by the contesting defendants and question of limitation did not arise at all under the present set of circumstances. To my mind, the trial Court has rightly decided issue No.6 in respect of limitation against the contesting defendants. 22. Not only that, the decision of the trial court was upheld by the Ist appellate Court, by virtue of impugned judgment, which, in substance, is (para 12) as under:- “I have given my considerable thoughts to the rival submissions made by learned counsel for the defendants/appellants as well as learned counsel for the respondent/plaintiff and after carefully scrutinizing the evidence as well as documents placed on file by both the parties, I am of the considered opinion that arguments advanced by learned counsel for appellants/defendants are devoid of merits. From the evidence both, oral as well as documentary, placed on file by the defendants, the alleged karewa marriage performed by plaintiff is not proved. When the karewa marriage is not proved, the entries of mutation Ex.D1 are not binding on the rights of the plaintiffs. From perusal of order dated 4.4.1960 Ex.D1/A, it is clear that no such statement was made by the plaintiff as no signature or thumb Regular Second Appeal No.3282 of 2009 (O&M) -9- impression was made by her under her statement showing her appearance before the revenue official and admitting having contracted karewa marriage with Gabdu on the basis of which Rapat/order Ex.D1/A dated 4.4.1960 was passed and thus, presumption to the official acts stand rebutted. Consequently, the order of sanction of mutation Ex.D1/Ex.P4 was not binding on the plaintiff being nonest in the eyes of law. Moreover, in their written statement defendants no.4,5,9 and 12 have taken the stand that on the 13th day of death of Rama Nand plaintiff contracted Karewa marriage with Gabdu. But as per Ex.D1/A the marriage was contracted some where in the year 1944-45. If the plaintiff had become the 'Karewakarda' wife of Gabdu in 1944-45, it is strange that the revenue record was not got changed in favour of Gabdu and Gopal, surviving brothers of Rama Nand, during this period. Further DW.4 Sudhan has clearly stated in his examination-in-chief that he was of unsound mind, therefore, no sanctity to his deposition can be attached. Even otherwise, he has admitted that Partap and Hukamkaur were born from the wedlock of Ghoghari wife of Gabdu and not from the plaintiff as per the version of the defendants in the written statement. DW5 Ranjeet Singh also stated that Karewa marriage by plaintiff with Gabdu was contracted after 1½/2 years of the death of Rama Nand whereas in the written statement the stand is that Karewa marriage was performed on the 13th day of death of Rama Nand. Hence, it is not proved on record that the plaintiff had contracted any Karewa marriage with Gabdu son of Gopal, hence she has a right in the property of her deceased husband Rama Nand. Reference in this connection may be made to Joginder Singh and Anr. Vs. Smt.Jogindero and Ors. 1996 (1) L.J.R. 258; Gurdialo Vs. Mst.Dhan Kaur 1959 P.L.R. 163 and Charan Singh Harnam Singh and another Vs. Gurdial Singh Harnam Singh and another, A.I.R. 1961 Punjab 301. Moreover, once the plaintiff has denied having performed Karewa marriage, it was then for the defendants to prove this fact but they have failed to prove the same. There cannot be any dispute about the proposition of law laid down in the authoritative pronouncements discussed above and relied upon by the learned counsel for defendants but the same being distinguishable on facts, the appellants/defendants cannot derive any benefit from the same.” 23. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the Regular Second Appeal No.3282 of 2009 (O&M) -10- pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the aforesaid concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 24. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Courts below. 25. Therefore, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 26. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 27. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 28.7.2011 Judge AS Whether to be referred to reporter?Yes/No